T 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


,r  v 


j>V 


A    TREATISE 

ON  THE   CONSTRUCTION  OF   THE 

STATUTE    OF    FRAUDS, 

AS   IN   FORCE   IN   ENGLAND    AND   THE   UNITED    STATES. 

BY  CAUSTEN    BROWNE. 

FIFTH  EDITION. 
BY  JAMES   A.   BAILEY,  JR., 

COUNSELLOR   AT    LAW. 

WITH    THE    COOPERATION    OF    THE    AUTHOR. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1895. 


Entered  according  to  Act  of  Congress,  in  the  year  1870,  by 

CAUSTEN    BROWNE, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 
Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

CAUSTEN    BROWNE, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,  1895, 
BY  CAUSTEN  BROWNE. 


UNIVERSITY  PRESS  : 
JOHN  WILSON  AND  SON,  CAMBRIDGE,  U.  S.  A. 


PREFACE   TO  THIS  EDITION. 


IN  this  edition,  about  nineteen  hundred  cases,  de- 
cided since  the  publication  of  the  last  edition,  have 
been  added,  and  the  whole  text  has  been  carefully 
revised.  In  order  to  make  room  for  the  new  matter 
without  materially  increasing  the  size  of  the  volume, 
the  American  statutes  have  been  omitted  from  the 
appendix.  It  is  believed  that  no  serious  inconven- 
ience will  result  from  this  omission,  as  each  practi- 
tioner may  be  supposed  to  have  ready  access  to  the 
statutes  of  his  own  State. 

The  author  takes  great  pleasure  in  acknowledging 
his  obligations  to  his  co-editor  for  thorough  research 

and  intelligent  criticism. 

CAUSTEN  BROWNE. 

BOSTON,  June,  1895. 


728872 


PREFACE  TO  THE  FOURTH  EDITION. 


IN  the  preparation  of  the  present  edition,  no  pains  have 
been  spared  which  seemed  to  promise  for  the  book  a  higher 
degree  of  accuracy  or  of  usefulness  to  the  profession.  The 
text  has  throughout  been  carefully  revised.  Much  of  it  has 
been  entirely  rewritten,  in  order  to  present  certain  topics 
with  greater  fulness  or  in  new  aspects,  as  seemed,  by  the 
course  of  recent  judicial  decisions,  to  be  rendered  desirable. 
Besides  adding  the  cases  reported  since  the  third  edition, 
all  citations  made  in  earlier  editions  have  been  carefully 
verified,  and  many  other  cases  of  that  date  added,  with  the 
result  that  the  present  edition  contains  in  all  more  than  a 
thousand  cases  not  previously  found  in  the  book.  Improve- 
ments have  also  been  made  in  its  index  and  table  of  cases. 
The  author  trusts  and  believes  that  the  result  of  the  careful 
and  thorough  work  put  into  this  edition  will  be  to  confirm 
the  favorable  judgment  which  the  book  has  heretofore  enjoyed 
at  the  hands  of  the  profession. 

And  he  takes  peculiar  pleasure  in  acknowledging  his  obli- 
gation to  Alex.  Porter  Browne,  Esq.,  of  the  Suffolk  bar,  for 
constant  and  very  valuable  aid  in  this  revision;  gladly  con- 
ceding to  him  a  least  an  equal  share  in  whatever  credit  the 
work  done  may  be  held  to  deserve. 

BOSTON,  March,  1880. 


PREFACE  TO  THE  FIRST  EDITION. 


IT  can  scarcely  be  necessary  to  offer  any  apology  for  the 
appearance  of  what  professes  to  be  a  practical  treatise  upon 
the  Statute  of  Frauds.  Perhaps  it  is  not  too  much  to  say 
that  there  is  no  subject,  apparently  so  simple  in  its  nature 
as  the  requirement  of  certain  kinds  of  evidence  in  certain 
cases,  more  confused  and  complicated  by  the  number, 
variety,  and  apparent  if  not  actual  contradiction  of  the 
decisions.  Nor  has  there  been  for  many  years  any  work 
to  which  the  practitioner  could  resort  as  a  safe  and  ready 
guide  to  the  rules  and  modifications  of  rules  which  these 
decisions  have  established.  There  are,  it  is  true,  numerous 
text-writers,  of  whose  works  we  possess  late  editions,  upon 
topics  involving  a  more  or  less  extended  notice  of  the 
statute;  but  it  is  certainly  no  disparagement  of  their  labors 
to  say  that  they  have  been  unable  to  give  to  it  so  full  and 
thorough  a  treatment  as  its  importance  has  come  to  demand ; 
to  do  so  was  quite  incompatible  with  the  proper  plans  of 
their  respective  treatises.  The  work  of  Mr.  Roberts,  the 
only  one  in  which  this  subject  has  been  exclusively  consid- 
ered, ha  always  been  held  in  high  esteem  for  the  breadth 
and  judiciousness  of  its  commentary,  its  critical  analysis  of 
cases,  and  its  lucid  and  elegant  style.  Such  has  been  the 
profusion  of  decisions  since  he  wrote,  however,  that  it 
cannot  now  supply  the  practical  need  of  the  profession. 

That  the  present  work  is  altogether  such  as  to  supply  this 
need,  the  author  is  far  from  confident.  The  professional 
reader  will  be  well  able  to  appreciate  the  difficulties  which 
have  opposed  themselves  to  the  execution  of  such  a  task, 
arising  not  only  from  the  confused  state  of  the  law  itself  but 


PREFACE.  V 

from  the  diversity  of  the  titles  to  be  discussed.  In  regard 
to  both  these  points,  the  method  pursued  in  the  examination 
of  cases,  and  the  selection  and  arrangement  of  the  topics 
treated,  a  few  words  may  be  not  inappropriately  said  in  this 
place. 

The  multifarious  provisions  of  the  Statute  of  Frauds  appear 
to  group  themselves  in  these  several  classes:  1.  The  crea- 
tion and  transfer  of  estates  in  land,  both  legal  and  equit- 
able, such  as  at  common  law  could  be  effected  without  deed ; 
2.  Certain  cases  of  contracts  which  at  common  law  could  be 
validly  made  by  oral  agreement;  3.  Additional  solemnities 
in  cases  of  wills;  4.  New  liabilities  imposed  in  respect  of 
real  estate  held  in  trust;  5.  The  disposition  of  estates  pur 
autre  vie  ;  6.  The  entry  and  effect  of  judgments  and  execu- 
tions. Of  these,  the  last  three  classes  have  clearly  no  such 
mutual  relation  as  would  have  made  it  profitable  or  practi- 
cable to  consider  them  together  even  if  there  existed  any 
need  of  a  special  treatise  in  regard  to  them.  The  other  three 
classes  have  this  common  feature,  that  they  all  pertain,  in 
one  way  or  another,  to  the  subject  of  written  evidence,  and 
thus  are  perhaps  susceptible  of  being  treated  in  succession 
without  actual  incongruity.  But  for  two  reasons  it  was 
deemed  best  to  omit  from  this  work  the  consideration  of  the 
provisions  in  regard  to  wills:  first,  because  it  did  not  seem 
to  be  really  needed  by  the  profession,  the  admirable  treatise 
of  Mr.  Jarman,  as  lately  edited  in  this  country,  presenting 
in  complete  and  accessible  shape  all  that  it  would  have  been 
appropriate  to  present  here,  and  the  author  being  unwilling 
to  increase  the  size  of  the  book  without  increasing  its  prac- 
tical value ;  secondly,  becau  e  those  provisions  stand  entirely 
outside  of  what  appears  to  be  generally  understood  as  the 
domain  of  the  Statute  of  Frauds,  whether  in  reference  to 
the  English  law  or  that  of  the  several  States,  namely,  the 
requirement  of  writing  in  proof  of  transactions  which  were 
previously  capable  of  valid  proof  by  oral  evidence,  involving 
the  recognition,  so  to  speak,  of  writing  as  a  tertium  quid  in 


vi  PKEFACE. 

law,  the  establishment  of  a  distinction  between  the  two  kinds 
of  transactions,  those  effected  by  writing  and  those  effected 
verbally,  both  of  which  the  common  law  comprehended  within 
the  single  term  parol.  The  result  has  been,  therefore,  to 
confine  the  work  to  the  first  two  of  the  general  topics  to 
which,  as  above  analyzed,  the  statute  relates ;  and  of  these, 
it  has  been  found  unavoidable  to  give  decided  prominence  to 
the  topic  of  contracts^  as  in  itself  possessing  superior  practi- 
cal importance,  and  as  being  most  perplexed  by  contradic- 
tory decisions. 

As  to  the  method  pursued  in  the  consideration  of  adjudged 
cases,  it  may  be  necessary  to  explain  that  while  the  text 
has  been  devoted,  wherever  the  condition  of  the  law  allowed, 
to  that  concise  and  systematic  statement  of  principles,  with 
their  modifications  and  exceptions,  which  is  always  most 
acceptable  in  a  practical  treatise,  yet  in  many  cases  where, 
owing  to  the  conflicting  character  of  the  decisions,  this  could 
not  be  done  without  leaving  the  topic  confused,  the  author 
has  thought  best  to  avoid  being  superficial  at  the  risk  of 
being  considered  prolix,  and  has  freely  and  closely  examined 
the  cases  in  detail.  In  so  doing  he  has  been  occasionally 
obliged  to  state  conclusions  at  variance  with  some  which 
have  appeared  to  rest  upon  high  judicial  authority,  but 
always  in  a  spirit  of  sincere  deference,  and  solely  with  a 
view  to  afford  some  aid  to  the  researches  of  the  more  accom- 
plished reader.  His  examination  of  cases  referred  to  has 
been  personally  and  carefully  made;  and  while  he  cannot 
doubt  that  the  superior  ability  and  learning  of  those  who 
may  examine  his  work  may  discover  errors  in  his  conclu- 
sions, he  believes  it  will  be  found  that  the  difficulties  of  the 
subject  have  been  plainly  stated  and  fairly  met. 

With  all  its  imperfections,  and  doubtless  it  has  many,  it 
is  now  submitted  to  the  profession  for  which  the  author  has 
testified  his  respect  by  endeavoring  to  render  it  this  service. 

BOSTON,  June,  1857. 


INTRODUCTION. 


THE  title  of  the  statute  which  forms  the  subject  of  this 
work  states  it  to  be  "An  Act  for  Prevention  of  Frauds  and 
Perjuries."  In  the  recital,  however,  its  object  is  expressed 
somewhat  differently,  as  the  "prevention  of  many  fraudulent 
practices  which  are  commonly  endeavored  to  be  upheld  by 
perjury  and  subornation  of  perjury."  The  latter  phraseology 
is  clearly  the  more  accurate;  for  the  statute  does  not  aim 
directly  to  suppress  fraud  and  perjury  by  imposing  any  new 
punishment  in  cases  where  they  are  proved  to  have  been 
committed,  but  makes  provision  for  excluding  in  certain 
cases  such  modes  of  proof  as  experience  had  shown  to  be 
peculiarly  liable  to  corruption.  And  again,  it  would  be  a 
narrow  view  of  the  statute,  at  least  as  interpreted  at  the 
present  day,  to  limit  its  application  to  cases  where  there  is 
in  fact  more  or  less  danger  of  perjury  or  subornation  of 
perjury.  The  purest  character  and  the  highest  degree  of 
credibility  on  the  part  of  the  witnesses  by  whom  a  transac- 
tion, for  the  proof  of  which  this  statute  requires  written 
evidence,  is  sought  to  be  made  out,  or  the  most  overwhelm- 
ing preponderance  in  their  number,  are  entirely  unavailing 
to  withdraw  a  case  from  its  reach.  Indeed  the  real  object 
and  scope  of  the  statute  would  seem  to  extend  far  beyond  all 
questions  of  the  integrity  of  witnesses,  and  to  comprehend 
the  exclusion  of  merely  oral  testimony  in  certain  classes  of 
transactions,  as  at  best  of  an  uncertain  and  deceptive  char- 
acter. In  estimating  the  value  of  this  enactment,  therefore, 
the  important  question  is  not  whether  the  statute  has  in  its 
practical  working  let  in  as  much  perjury  as  it  has  excluded. 


viii  INTRODUCTION. 

for  no  strictness  of  legislation  can  bar  out  from  a  court  of 
justice  the  man  who  deliberately  purposes  to  commit  perjury ; 
but  it  is  whether,  in  the  average  of  large  experience  since 
the  statute  was  enacted,  the  requisition  of  written  testimony 
in  certain  cases  has  not  materially  served  to  secure  the  prop- 
erty of  men  against  illegal  and  groundless  claims.  That  it 
has  done  so  will  scarcely  be  disputed,  and  to  the  profound 
practical  wisdom  with  which  it  was  conceived  to  this  end 
the  most  enlightened  judges  and  jurists  have  at  all  times 
borne  emphatic  testimony. 

Nevertheless  it  cannot  be  said  to  have  been  judically 
administered  with  a  firm  hand  and  in  a  consistent  spirit. 
Within  a  few  years  after  its  enactment,  and  before  the 
generation  of  its  framers  had  passed  away,  we  find  the  courts 
admitting  exceptions  and  distinctions  as  to  its  application, 
and  forcing  upon  it  constructions  tending  to  restrict  its 
beneficial  operation.  In  later  days  there  has  been  evinced, 
on  the  whole,  a  disposition  to  return  to  a  closer  interpreta- 
tion of  its  provisions;  but  even  now  there  are  doctrines,  too 
firmly  settled  by  precedent  to  be  overthrown,  which,  from 
their  very  inconsistency  with  the  spirit  of  the  statute,  lead 
continually  to  great  embarrassment  in  its  administration. 

It  must,  however,  be  admitted  that  much  of  the  difficulty 
which  has  been  found  to  attend  the  exposition  of  the  statute 
is  due  to  the  style  in  which  it  is  framed.  The  professional 
reader  who  carefully  examines  it  from  beginning  to  end  will 
find  such  obscurity  of  arrangement  and  such  inexact  and 
inconsistent  phraseology,  as  to  conclude  that  safe  and 
rational  rules  for  its  construction  can  hardly  be  rested  upon 
its  literal  expressions,  but  that  it  must  be  read,  as  far  as 
may  be,  by  the  light  of  that  broad  and  wise  policy  in  which 
it  was  manifestly  conceived.  And  this  suggests  a  few  words 
upon  the  authorship  of  the  statute,  with  which  these  intro- 
ductory observations  may  fitly  close. 

In  a  decision  of  the  Court  of  Queen's  Bench  which  has 
perhaps  given  rise  to  more  discussion  than  any  other  which 


INTRODUCTION.  IX 

has  ever  passed  upon  the  statute,  that  of  Wain  v.  Warlters, 
where  it  was  determined  that  the  written  memorandum 
required  by  the  fourth  section  must  show  the  consideration 
of  the  agreement,  Lord  Ellenborough  rested  his  judgment 
(in  which  his  brother  judges  concurred)  in  great  part  upon 
the  etymological  force  of  the  word  "  agreement ; "  remark- 
ing, in  vindication  of  that  rule  of  construction,  that  the 
statute  was  said  to  have  been  drawn  by  Lord  Hale,  "  one  of 
the  greatest  judges  who  ever  sate  in  Westminster  Hall,  who 
was  as  competent  to  express  as  he  was  able  to  conceive  the 
provisions  best  calculated  for  carrying  into  effect  the  pur- 
poses of  that  law."1  Lord  Chief  Baron  Gilbert  says  that 
the  statute  was  prepared  by  Lord  Hale  and  Sir  Lionel 
Jenkins.2  But  Lord  Mansfield  considered  it  scarcely  prob- 
able that  it  was  drawn  by  Lord  Hale,  as  "  it  was  not  passed 
till  after  his  death,  and  was  brought  in  in  the  common  way 
and  not  upon  any  reference  to  the  judges."  3  This  coincides 
with  what  is  the  most  distinct  evidence  we  seem  to  have 
upon  the  subject,  the  direct  statement  of  Lord  Nottingham, 
who  says,  "  I  have  reason  to  know  the  meaning  of  this  law, 
for  it  had  its  first  rise  from  me,  who  brought  in  the  bill  into 
the  Lords'  House,  though  it  afterwards  received  some  addi- 
tions and  improvements  from  the  judges  and  civilians."4  It 
would  seem,  therefore,  that  after  its  original  proposition  in 
Parliament  by  Lord  Nottingham,  Lord  Hale  and  Sir  Lionel 
Jenkins  had  it  under  consideration  and  revision,  and  that 
it  was  finally  passed,  as  it  was  left  by  them,  in  an  informal 
shape.  Lord  Hale  was  not  then  alive,  and  the  statute  itself 
affords  strong  internal  evidence,  as  for  instance  in  its  want 
of  compactness  and  in  the  use  of  different  words  in  different 
places  to  express  the  same  subject-matter,  that  it  was  never 
regularly  engrossed  with  a  view  to  its  enactment. 

1  5  East,  16.     See  this  Treatise,  §  392.  a  Gilb.  Eq.  171. 

8  1  Burr.  418.  *  3  Swanst.  664. 


TABLE  OF  CONTENTS. 


PAGE 

TABLE  OF  CASES  CITED xiii 

CHAPTER 

I.     FORMALITIES  FOR  CONVEYING  ESTATES  IN  LAND     .  3 

II.     LEASES  COVERED  BY  THE  STATUTE 24 

III.  LEASES  EXCEPTED  FROM  THE  STATUTE     ....  40 

IV.  ASSIGNMENT  AND  SURRENDER 52 

V.     CONVEYANCES  BY  OPERATION  OF  LAW,  ETC.      .     .  70 

VI.    TRUSTS  IMPLIED  BY  LAW 93 

VII.     EXPRESS  TRUSTS 113 

VIII.     VERBAL  CONTRACTS,  HOW  FAR  VALID      ....  137 

IX.     CONTRACTS  IN  PART  WITHIN  THE  STATUTE     .     .     .  179 

X.     GUARANTIES 189 

XI.     AGREEMENTS  IN  CONSIDERATION  OF  MARRIAGE       .  287 

XII.     CONTRACTS  FOR  LAND 298 

XIII.  AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR    .  359 

XIV.  SALES  OF  GOODS,  ETC 390 

XV.     ACCEPTANCE  AND  RECEIPT 417 

XVI.     EARNEST  AND  PART-PAYMENT 462 

XVII.     THE  FORM,  ETC.,  OF  THE  MEMORANDUM      .     .     .  466 

XVIII.     THE  CONTENTS  OF  THE  MEMORANDUM      ....  506 

XIX.     VERBAL  CONTRACTS  ENFORCED  IN  EQUITY     .     .     .  557 

XX.     PLEADING 622 

APPENDIX 647 

INDEX  .                     653 


TABLE   OF  CASES. 


[References  are  to  the  sections.] 


A. 

Abbe,  Curtis  v.  (39  Mich.  441),  266. 
Abbey  v.  Chase  (6  Gush.  Mass.  64),  13. 

,  Warner  v.  (112  Mass.  355),  20. 

Abbott  v.  Baldwin  (61  N.  H.  583),  488. 

v.  Draper  (4  Denio,  N.  Y.   51), 

121,  122,  451. 

v.   Gilchrist   (38   Me.   260),  308, 

310. 
v.  Inskip  (29  Ohio  St.  59),  122a, 

276. 

v.  Mills  (3  Vt.  521),  74a. 

v.  Nash  (35  Minn.  451),  157. 

,  Upper  Locks  v.  (14  N.  H.  157), 

195. 

,  Wilson  v.  (3  Barn.  &  C.  88),  38. 

Abeel  v.  Radcliff  (13  Johns.  N.  Y.  297), 

371,  385. 
Abell,  Rucker  v.  (8  B.  Mon.  Ky.  566), 

119,  120. 

v.  Williams  (3  Daly,  N.  Y.  17),  51. 

Abrahams  c.  Bunn  (4  Burr.  2255),  517. 
Acebal  v.  Levy  (10  Bing.  376),  377. 
Acker   v.  Campbell  (23  Wend.  N.  Y. 

372),  293. 
Ackerman  v.  Fisher  (57  Pa.  St.  457), 

466,  487,  494. 
Ackley,  Huffman  v.  (34  Mo.  277),  135, 

508. 
v.  Parmenter  (98  N.  Y.  425),  187, 

206,  214a. 
Acklom,  Dodd  v.  (6  Man.  &  G.  672), 

60,65. 
Acraman,  Ex  parte  (7  L.  T.  N.  8.  84), 

282. 
Adams  v.  Adams  (26  Ala.  272),  278a. 

v.  Adams  (17  Ore.  247),  215a. 

v.  Anderson    (4  Harr.  &  J.  Md. 

658),  183. 

i?.  Bean  (12  Mass.  136),  406. 

,  Brown  v.  (1  Stew.  Ala.  61),  161c. 

v.  Cooty  (60  Vt.  396),  118. 

,   Cowan   v.   (1   Fairf.   Me.    374), 

138A. 

o.  Dansey  (6  Bin*.  606),  159. 

— — ,  Dickenson   v.   (4  Ves.  720  note), 

461. 
,  Fullam  v  (37  Vt.  391),  1666,  187, 

214,  214e. 


Adams,  Haven  v.  (4  Allen,  Mass.  80), 

13. 

,  Newburger  v.  (92  Ky.  26),  384. 

v.  Patrick  (30  Vt.  516),  498,  508. 

,  Phillips  v.  (70  Ala.  373),  376,  509. 

,  Piercy  v.  (22  Ga.  109),  505. 

v.   Rockwell   (16   Wend.    N.   Y. 

285),  487. 

v.  Scales  (1  Baxt.  Tenn.  337), 367. 

v.  Smilie  (50  Vt.  1),  122. 

v.  Townsend  (1  Met.  Mass.  483), 

451. 

,  Ware  v.  (24  Me.  177),  191. 

Adarene,  Sheeny  v.  (41  Vt.  541),  290a. 
Adcock,  Hargrove  v.  (Ill  N.  C.  166), 

370a. 
Addams,  Sellick  v.  (15  Johns.  N.  Y. 

197),  76. 
Addington,  Allen  v.  (7  Wend.  N.  Y.  9), 

181. 
Adee,  Rappleye  v.   (65  Barb.  N.  Y. 

589),  325. 
Adkinson  v.  Barfield  (1  McCord,  S.  C. 

Law,  575),  205. 
Adlington  v.  Cann   (3  Atk.   141),  82, 

103,  106,  107. 

Adrian,  Meyer  v.  (77  N.  C.  83),  3466. 
Aflalo,  Goom  v.   (6  Barn.  &  C.  117), 

351. 
Agar,  Chamberlain  v.  (2  Ves.  &  B.  259), 

442. 
Agate  v.  Gignoux  (1  Rob.  N,  Y.  278), 

229 

Aguirre,  Alien  v.  (7  N.  Y.  543),  117, 

1176,  298. 

Aicardi  v.  Craig  (42  Ala.  311),  135. 
Aiken  v.  Duren  (2  Nott  &  McC.  S.  C. 

370),  164. 

,  Moody  v.  (50  Tex.  65),  234. 

,  Pugsley  v.  (11  N.  Y.  494),  35. 

Ainge,  Robinson  v.  (L.  R.  4  C.  P.  429), 

258. 
Aitcheson,  Weaver  v.  (65  Mich.   285), 

122. 

Aitkin  v.  Young  (12  Pa.  St.  15),  476. 
Alabama  Life   Ins.  Co.,  Oliver  v.  82 

Ala.  417).  3466,  365. 
Alba  v.  Strong  (94  Ala.  163),  493. 
Albany,  Argus  Co.  v.  (55  N.  Y.  495), 

346a,  346. 


XIV 


TABLE   OF   CASES. 


Albany  R.  R.,  Van  Woert  v.  (67  N.  Y. 

638),  278c,  336. 
Albea  v.  Griffin  (2  Dev.  &  B.  N.  C.  Eq. 

9),  448,  490. 

Albee,  Soule  v.  (31  Vt.  142),  188. 
Albert  v.  Winn   (5  Md.  6(5),  224,  498, 

515. 
,  Winn  v.  (2  Md.  Ch.  Dec.  169), 

223,498,515. 
Albertson  v.  Ashton  (102  111.  50),  370a. 

,  Johnson  v.  (51  Minn.  333),  38. 

Albreclit,   Duncuft   v.   (12   Sim.  189), 

258,  296. 

Alcox,  Shelton  v.  (11  Conn.  240),  75. 
Aldenburgh  v.  Peaple  (6  Carr.  &   P. 

212),  47. 

Alderman  c.  Chester  (34  Ga.  152),  276. 
Alderson,  Maddison  v.  (L.  R.  8  H.  L. 

C.  467),  lloa,  455a,  460a,  463, 

467. 
Aldrich  r.   Ames   (9  Gray,  Mass.  76), 

161r,  188. 

,  Esty  v.  (46  N.  H.  127),  276a. 

r.  Jewell  (12  Vt.  125),  197. 

,  Livermore  v.  (5  Gush.  Mass.  431), 

85,  92,  93. 
,  Moore  v.  (25  Tex.   Supp.   276), 

133. 
Aldridge,  Stickland  v.  (9  Ves.  516),  82, 

103,  107,  442. 
Alexander,   Clark  v.   (8   Scott  N.   R. 

147),  370c. 

v.  Comber  (1  H.  Bl.  20),  293. 

v.  Ghiselin  (5  Gill,  Md.  138),  147, 

151,  294. 
,  Hamar  v.  (2  Bos.  &  P.  N.  R.  244), 

185. 

,  Locke  v.  (1  Hawks,  N.  C.  412),  13. 

v.  Merry  (9  Mo.  510),  78. 

v.  Oneida  County  (76  Wise.  56), 

327 

r.  Tarns  (13  111.  221),  89. 

Alford  v.  Wilson  (26  S.  W.  Rep.  Ky. 

539),  354,  441a. 
Alger  v.  Scoville  (1  Gray,  Mass.  391), 

158,  188,  204,  206,  212. 
v.  Johnson  (4  Hun,   N.  Y.  412), 

508. 
,  Thompson  v.  (12  Met.  Mass.  428), 

298,  343. 
Allaire  v.  Ouland  (2  Johns.  N.  Y.  Cas. 

52),  159. 
Allan  v.  Bower  (3  Bro.  C.  C.  149),  385, 

456,  496. 
Allard  a.  Greasert  (61  N.  Y.  1),  314, 

327(i,  335. 
Allen  r.  Addington  (7  Wend.  N.  Y.  9), 

181. 
r.  Apuirre  (7  N.  Y.  543),  117, 1176, 

298. 

,  Beach  r.  (7  Hun,  N.  Y.  441),  233. 

v.  Bennet  (3  Taunt.  169),  293,  348, 

349,  365,  373. 


Allen,  Bibb  v.  (149  U.  S.481),  116,  351. 

v.  Booker  (2  Stew.  Ala.  21),  118, 

451. 
,  Bushee  r.  (31  Vt.  613),  197. 

v.   Chambers  (4  Ired.  N.  C.  Eq. 

125),  448,  510a,  519. 
t7.  Devlin  (6  Bosw.  N.  Y.  1),  34, 

46,  47. 
v.  Eighmie  (14  Hun,  N.  Y.  559), 

165. 

,  Fitzsimmons  v.  (39  111.  440),  465. 

».  Jaquish  (21  Wend.  N.  Y.  628), 

7,  8,  42,  47. 

v.  Jarvis  (20  Conn.  38),  307. 

et  a/.,  Keyes  v.  (65  Vt.  667),  166. 

v.  Knight  (5  Hare,  272),  62. 

,  Lacon  v.  (3  Drew.  582),  62a. 

,  Mattice  v.  (3  Abb.  N.  Y.  App. 

Dec.  248),  342a. 

,  Nichols  t7.  (23  Minn.  542),  391. 

,  Prosser  v.  (Gow.  117),  199. 

v.  Pry  or  (3  A.  K.   Marsh.   Ky. 

305),  166. 
».  Richard  (83  Mo.  55),  90,  263a, 

511. 
,   Richards  v.  (17  Me.  296),   119, 

122. 

v.  Scarff  (1   Hilton,  N.  Y.  209), 

197. 

,  Taylor  v.  (40  Minn.  433),  515. 

17.  Thompson  (10  N.  H.  32),  202. 

Underbill  v.  (18  Ark.  466),  507. 


Allen's  Estate  (1  Watts  &  S.  Pa.  383), 

448,  470,  475. 

,  Wiser  17.  (92  Pa.  St.  317),  92. 

v.  Withrow  (110  U.  S.  119),  126. 

Ailing  v.  Munson  (2  Conn.  691),  180. 
Allis  v.  Read  (45  N.  Y.  142),  122. 
Allison    v.    Burns   (107   Pa.    St.    50), 

491a. 
v.  Perry  (130  111.  9),  259. 

v.  Perry   (28  111.  App.  Ct.  396), 

259. 
Allnut  c.  Asbenden  (5  Man.  &  G.  392), 

403. 
Allsbouse   v.   Ramsay   (6  Whart.   Pa. 

331),  193. 
Alna  v.  Plummer  (4  Greenl.  Me.  258), 

369,  370o. 
Ambrose  v.  Ambrose  (1  P.  Wms.  321), 

91,  97. 
Amburger  v.   Marvin  (4  E.  D.  Smith, 

N.  Y.  393),  284. 
American  Co.,  Mulchrone  v.  (55  Mich. 

622),  1666. 

Insurance  Co.,  Amsinck  v.  (129 

Mass.  185),  138A. 
Lead  Pencil  Co.  v.  Wolfe  (30  Fla. 

360),  187. 
Ring  Co.,  Norton  v.  (1  Fed.  Rep. 

684),  345a. 
Ameriscoggin  Bridge  Co.  17.  Bragg  (11 

N.  H.  109),  29,  30. 


TABLE   OF   CASES. 


XV 


Ames,  Aldrich  v.  (9  Gray,  Mass.  76), 

161c,  188. 
v.  Bigelow  (3  McArthur,  D.  of  C. 

442),  441. 

v.  Foster  (106  Mass.  400),  204. 

r.  Jackson  (116  Mass  608),  135. 

,  Maggs  v.  (4  Bing.  470),  156,  511, 

518. 

v.  Scudder  (83  Mo.  189),  98. 

Amhurst,  Bawdes  v.  (Finch,  Tree.  Ch. 

402),  355,  443. 
Ammon,  Malaun  P.  (1  Grant,  Pa.  123), 

226 
Amort  v.  Christofferson  (59  N.  W.  Rep. 

Minn.  304),  199. 
Amory  v.  Kannoffsky  (117  Mass  351), 

55. 
Arasinck   v.   American    Ins.   Co.   (129 

Mass.  185),  138A. 
Amsterdam  Presb.  Church,  Voorhees  P. 

(17  Barb.  N.  Y.  103),  82. 
Andern  v.  Ronney  (5  Espinasse,  254), 

187. 
Anders  v.   Anders  (2  Dev.  N.  C.  Law, 

629),  69. 
Anderson,  Adams  v.  (4  Harr.  &  J.  Md. 

658),  183. 

,  Brakefield  v.  (87  Tenn.  206),  498 

v.  Brinser  (129  Pa.  St.  376),  467. 

,  Carrington  p.   (5  Munf.  Va.  32), 

368,  369. 
,   Carroway  v.   (1   Humph.   Tenn. 

61),  75,  505. 

v.   Chick  (Bail.  S.  C.  Eq.  118), 

369. 

,  Currie  v.  (2  El  &  E.  592),  316/. 

p.  Davis  (9  Vt.  136),  193. 

,  Eastham  v.  (119  Mass.  626),  117. 

,  Guthire  v.  (47  Kans.  383),  365, 

461. 

,  Guthire  r.  (49  Kans.  416),  365. 

r.  Han-old  (10  Ohio,  399),  355. 

P.  Hayman  (1  H.  Bl  120),  197. 

,  Indiana  State  Bank  v.  (14  Iowa, 

644),  65. 

,  Logan  P.  (2  Doug.  Mich.  101),  65. 

,  Ormond  p.  (2  Ball  &  B.  363),  366. 

,  Palmer  v.  (63  N.  C.  365),  75. 

p.  Powers  (69  Tex.  213),  229. 

v.  Prindle  (23  Wend.  N.  Y.  619), 

38. 

p.  Scot  (1  Camp.  235,  note),  325. 

p.  Shockley  (82  Mo.  250),  491a. 

P.  Simpson  (21  Iowa,  899),  467, 

476. 

P.  Spence  (72  Ind.  315),  161c. 

Andover.     See  Trustees. 

Andre  P.  Bodman  (13  Md  241),  193. 

Andrew  p.  Babcock  (26  Atl  Rep.  Conn. 

715),  385.  471. 
Andrews  »>.   Babcock  (63  Conn.  109), 

355,  450,  471,  476. 
,  Bell  P.  (4  Dall.  Pa.  152),  226. 


Andrews,    Clayton  p.   (4  Burr.  2101) 
293,  300. 

-  p.  Jones  (10  Ala.  400),  116,  223. 

-  ,  Low  P.  (  1  Story,  C.  C.  38),  136. 

-  p.  O'Mahoney  (112   N.   Y.  667), 

265. 

-  v.  Smith  (Tyrw.  &  G.  173),  187. 

-  ,  Spalding  v.  (48  Pa.  St.  411),  172. 
Andrus,  Mercein  p.   (10  Wend.  N   Y. 

461),  205. 

Angel  P.  Simpson  (85  Ala.  63),  499. 
Angell  v.  Duke  (L.   R.  10  Q.  B.  174), 

117,  117a,  141,  233. 
Angier,  Britton  p.  (48  N.  H.  420),  391. 
Anheuser-Busch  Brewing  Ass  ,  Steele 

v.  (58  N.  W.  Rep.  Minn.  685), 

38. 
Annis,  Safford  p.  (7  Greenl.  Me.  168), 

245,  255a. 
Anonymous  (1  Ventr.  361),  230. 

-  U  Ld.  Raym.  182),  253. 

Anson  v.  Townsend  (73  Cal.  416),  467. 
Anstev,  Luders  P.  (4  Ves.  501),  216a. 

-  p".  Marden  (1  Bos.  &  P.  N.  R.  124), 

179,  210. 
Anthony   p.   Leftwich   (3    Rand.    Va. 

255),  448,  490. 
Antonio  v.  Clissey  (3  Rich.  S.  C.  Law, 

201),  195. 
Apgar,  Finney  v.  (31  N.  J.  L.  266),  305. 

-  p.  Hiler  (24  N.  J.  L.  812),  161«, 

161c. 
Appleby,  Pickering  p.  (1  Comyns,  354), 

296. 
Apthorp,  Wellington  p.  (145  Mass.  69), 

263,  275. 

-  ,  Wellington  v.  (145  Mass.  73),  266. 
Arbuckle  v.  Hawks  (20  Vt.  628),  195. 
Archbishop  of  York.     See  York. 
Archer  P.  Baynes  (5  Exch.  626),  371o. 
Archer,   Gosbell  p.  (2  Ad.  &  E.  600), 

359,  369,  370a. 

-  ,  Upton  P.  (4  Cal.  85),  126. 
Archibald,   Sievewright  r.    (17   Q.   B. 

103),  351,  362a,  353. 

-  ,  Spalding  p.  (62  Mich.  365),  26. 
Argenbright  P.  Campbell  (3  Hen.  &  M. 

Va.  144),  224.  354a,  498,  615, 
624,  633. 
Argus  Co.  P.  Albany  (55  N.  Y.  495), 


Arkwright,  Ex  parte  (3  M.  D.  &  De  G. 

129),  62a. 

Armes,  Bigelow  p.  (108  U.  S.  10),  475. 
Armiger  P.  Clark  (Bunbury,  111),  866. 
Armitage,  Pilling  P.  (12  Ves.  78),  493. 
Armor  p.  Spalding  (14  Col.  802),  441a. 
Arms  P.  Ashley  (4  Pick.  Mass.  71  ),  109, 

112. 

Armsly,  Heffron  p.  (61  Mich.  605),  870a. 
Armstead,  Tuttler.  (53  Conn.  175),  187. 
Armstrong  v.  Cushney  (43  Barb.  N.  Y 

840),  298 


XVI 


TABLE   OF   CASES. 


Armstrong,   Elliott  v.  (2  Blackf.  Ind. 

108),  92,  93. 

v.  Flora  (3  T.  B.  Mon.  Ky.  43),  193. 

,  Green  t<.  (1  Denio,  N.  Y.  550),  256. 

,  Hawes  v.  (1  Bing.  N.  R.  761),  388, 

399,  404. 

,  Holbrook  v.  (10  Me.  31),  289. 

,  Ives  v.  (5  R.  I.  567),  385. 

v.  Kattenliorn  (11  Ohio,  265),  452, 

454,  476. 

t-.  Lawson  (73  Ind.  498),  256,  269a. 

,  Newbery  v.  (Moo.  &  M.  389),  400. 

v.  Vroman  (11  Minn.  220),  265. 

Arnold  v.  Cord  (16  Ind.  177),441,445a. 
,  Cummings  v.  (3  Met.  Mass.  486), 

411,  424,  428,  436. 

v.  Garst  (16  R.  I.  4),  125. 

,  Judd  v.  (31  Minn.  430),  17. 

Arnold,  Potter  v.  (15  R.  I.  350),  230. 
,  Smith  v.  (5  Mas.  C.  C.  414),  265, 

353,  354,  367,  369.  376. 

v.  Stedman  (45  Pa.  St.  186),  204. 

v.  Stephenson  (79  Ind.  126),  117. 

,  Stephenson  v.  (89  Ind.  426),  150. 

Argus  Co.  v.  Albany  (55  N.  Y.  495), 

346. 
Arrington  v.  Porter  (47  Ala.  714),  430, 

467. 
Artcher  v.  Zeh  (5  Hill,  N.  Y.  200),  275, 

278,  341,  342. 
Arthur,  Ewing  v,  (1  Humph.  Tenn.  537), 

65. 

,  Sands  v.  (84  Pa.  St.  479),  126. 

Artz  v.  Grove  (21  Md.  456),  498. 
Ascherman,  Seaman  v.  (51  Wise.  678), 

487. 
Ash  v.  Baggy  (6  Ind.  259),  483,  490. 

,  Townsend  v.  (3  Atk.  336),  258. 

Ashbaugh,  Sliellhammer  v.  (83  Pa.  St. 

24),  407. 
Ashcroft   v.    Butterworth    (136   Mass. 

511),  378. 

v.  Morrin  (4  Man.  &  G.  450),  378. 

,  Petrick  v.  (19  N.  J.  Eq.  339),  493. 

,  Petrick  v.  (20  N.  J.  Eq.  198),  508. 

Ashenden,  Allnut  v.  (5  Man.  &  G.  302), 

403. 
Ashfield,  Lippincott  v.  (4  Sandf.  N  Y. 

611),  187. 
Ashford  v.  Robinson  (Sired.  N.  C.  Law, 

114)  164,  391. 
Ashley,  Arms  v.  (4  Pick.  Mass.  71),  109, 

112. 

,  Evans  a.  (8  Mo.  177),  78,  357,  358. 

Ashton,  Albertson  v.  (102111.  50),  370«. 
Askew  v.  Poyas  (2  Desaus.  S.  C.  Ch 

145),  510«. 
Asprey,  Munday  v.  (L.  R.  13  Ch.  D. 

855),  352a,  87 In. 
Astey  v.  Emery  (4  Maule  &  S.  262), 

811,  327. 
Atchison,  T.  and  S.  F.  R.  R,  v.  English 

(38  Kans.  110),  276,  289. 


Athenaeum  Trustees,  Foster  v.  (3  Ala. 

302),  89,  92. 
Atherstone,  Nickells  v.  (10  Q.  B.  944), 

47,  53. 
Atherton  v.  Newhall  (123  Mass.  141), 

3lQd,  3276,  334a. 
Atkins  v.  Sleeper  (7  Allen,  Mass.  487), 

36. 
Atkinson,  Chapline  v.  (45  Ark.  67),  174, 

212. 

,  Ganter  v.  (35  Wise.  38),  28. 

,  Gray  son  v.  (2  Ves.  Sr.  454),  355. 

,  Moss  v.  (44  Cal.  3),  354a. 

,  Rogers  v.  (I  Kelly,  Ga.  12),  411. 

,  Tweddley.  (1  Best  &S.  393),  166a. 


,  Wilks  v.  (6  Taunt.  12),  303. 

,  Wm.  Butcher  Works  v.   (68  111. 

421),  126. 
Atlantic  Mills,  SutclifEe  v.  (13  R.  1. 480), 

280,  291. 
Atlee  v.  Bartholomew   (69  Wise.  43), 

345a. 
Attaquin  v.  Fish  (5  Met.  Mass.  140), 

450. 
Attorney-General  v.  Day   (1  Ves.  Sr. 

218),  78,  205,  498,  499. 
v.  Sit  well  (1   Younge  &  C.  Exch. 

583),  498,  500. 
Attwood,  Lloyd  v.  (3  De  G.  &  J.  614), 

62. 
Atwater  v.  Haugh  (29  Conn.  508),  305, 

310. 
Atwood,   Baldock  v.  (21   Oregon,  73), 

116. 
v.  Cobb  (16  Pick.  Mass.  227),  378, 

382,  385. 

o.  Norton  (31  Ga.  507),  272. 

Aubert,  Castling  v.  (2  East,  325),  155, 

164,  202,  203,  210. 
Auburn  R.  R.  Co.,  Miller  v.  (6  Hill,  N. 

Y.  61),  29. 

Auer  v.  Penn.  (92  Pa.  St.  444),  55. 
Aultman  v.  Booth  (95  Mo.  383),  135. 

,  Emerson  v.  (69  Md.  125),  408«. 

Ausley  v.  Green  (82  Ga.  181),  369,  380. 
Austen,  Young  v.  (L.  R.  4  C.  P.  553), 

505a,  506. 
Austin,  Cameron  v.  (65  Wise.  652),  122, 

453. 

,  Cameron  v.  (65  Wise.  657),  471. 

Austin  v.  Davis  (128  Ind.  472),  463. 
Austin  v.  Thompson  (45  N.  H.  113),  38. 
Auter  v.  Miller  (18  Iowa,  405),  515. 
Auty,  Teal  v.  (2  Brod.  &  B.  99),  236, 

251. 
Aveline  v.  Whisson  (4  Man.  &  G.  801), 

7,9. 

Avery,  Larkin  v.  (23  Conn.  313),  37. 
Aycock  v.  Kimbrough  (71  Texas,  330), 

69. 

Aylesford's  Case  (2  Stra.  783),  446,  471. 
Ayliffe  v.  Tracy  (2  P.  Wms.  65),  217, 

354a. 


TABLE   OF   CASES. 


XV11 


Aylott,  Hibbert  v.  (52  Tex.  5),  30,  480. 
Aylsworth,  Hicks  o.  (13  It.  1.602),  2ti7. 
Ay  mar  v.  Bill  (6  Johns.  N.  Y.  Ch.  670), 

66. 
Ay  res  v.  Probasco  (14  Kans.*  176),  360. 


B. 


Babcock,  Andrew  r.  (26  Atl.  Rep.  Conn. 

715),  385,471. 
,  Andrews  v.  (63  Conn.  109),  355, 

456,  471,  476. 
,  Bates  v.  (95  Cal.  479),  259,  261rf, 

262. 
,  v.  Bryant  (12  Pick.  Mass.  133), 

504. 

,  Cutler  i>.  (81  Wise.  191),  96a. 

v.  Meek  (45  Iowa,  137),  505. 

,  Russell  v.  (14  Me.  138),  198,  212. 

v.  Utter  (1  Abb.  N.  Y.  App.  Dec. 

60),  81. 
c.  Wyman  (19  How.  U.  S.  289), 

445«. 

Bach,  Spear  v.  (82  Wise.  192),  3186. 
Bachelder,  Dudley  v.  (63  Me.  403),  86. 
Back,  Wilks  i-.  (2  East,  142),  13. 
Backenstoss  v.  Stabler  (33  Pa.  St.  251), 

236. 

Backus,  Kiddle  v.  (38  Iowa,  81),  275. 
,  Van  Schoyck  v.  (9  Hun,  N.  Y.  68), 

282. 

Bacon,  Catlett  v.  (33  Miss.  269),  467. 
v.  Eccles  (43  Wise.  227),  316e,  326, 

384. 

,  Morris  v.  (123  Mass.  58),  65. 

v.  Parker  (137  Mass.  309),  118, 119. 

,  Quintard  v.  (99  Mass.  185),  316i. 

3276. 
,  Williams  v.  (2  Gray,  Mass.  387), 

344,  352u,  353,  364,  371«,  373. 
Bagby  v.  Walker  (27   Atl.  Rep.    Md. 

1033),  302. 
Baghurst,  Nibert  v.  (47  N.  J.  Eq.  201), 

348,  465,  476. 
Bagnel,  Whaley  v.  (1  Bro.  P.  C.  345), 

371«,  453,  460,  528. 
Bailey  r.  Bailey  (56  Vt.  398),  187. 

,  Bunn  v.  (159  Pa.  St.  121),  76. 

,  Clason  v.  (14  Johns.  N.  Y.  484), 

352,  365,  366. 
,  Col  em  an  v.   (4  Bibb,  Ky.   297), 

870o. 

,  Cox  v.  (6  Man.  &  G.  193),  312. 

,  Daniels  v.  (43  Wise.  566),   229, 

257. 
v.  Delaplaine  (1  Sandf.  N.  Y.  5), 

66 
r.  Freeman  (11  Johns.  N.  Y.  221), 

406. 

r  Hemenway  (147  Mass.  326),  86. 

,  Hoile  v.  (68  Wtae.  434).  188,  2146. 

v.  Irwin  (72  Ala.  605),  608. 


Bailey  ».  Ogden   (3  Johns.  N.  Y.  99), 
365,  367,  374. 

v.  Sweeting  (9  C.  B.  N.  8.  843), 

138e,    138;',    335,   352a,    354a, 

37  la. 
Bainbridge  v.  Wade  (16  Q.  B.  89),  388, 

403. 
Baines,  Devenish  v.  (Finch,  Free.  Ch. 

3),  94. 

Baker  v.  Baker  (4  Greenl.  Me.  67),  77. 
,  Bigler  v.  (58  N.  W.  Rep.  Neb. 

1026),  11,477. 

Bros.  v.  Lauter  (68  Md.  64),  118. 

r.  Carson  (1  Dev.  &  B.  N.  C.  Eq. 

381),  490. 

,  Cork  v.  (Stra.  34),  215. 

v.  Cornwall  (4  Cal.  15),  391. 

v.  Cuyler  (12  Barb.  N.   Y.  667), 

326. 
v.  Dillman  (12  Abb.  N.  Y.  Pr.  313), 

161c. 

,  Esty  v.  (48  Me.  405),  42. 

,  Hankins  v.  (46  N.  Y.  666),  319a, 

370a. 

v.  Hollobaugh  (15  Ark.  322),  619. 

,  Ingersoll  r.  (41  Mich.  48),  199. 

v.  Jameson   (2  J.  J.  Marsh.  Ky. 

547),  134. 
,  Miller  v.  (1  Met.  Mass,  27),  236, 

245. 

v.  Morris  (33  Kans.  580),  155. 

,  Morrison  v.  (81  N.  C.  76),  508. 

,  Osborne  v.  (34  Minn.  307),  408a. 

v.  Scott  (2  Thomp.  &  C.  N.  Y. 

606),  118. 

,  Stuart  v.  (17  Tex.  417),  69,  71. 

,  Thornbrough  v.  (Cas.  in  Ch.  283), 

65. 

,  Turner  v.  (64  Mo  218),  75. 

v.  Vining  (30  Me.  121),  86,  91,  92, 

93. 

,  Watson  K.  (71  Texas,  739),  117. 

,  Wendover  v.  (25  S.  W.  Rep.  Mo. 

918),  229. 

v.  Wiswell  (17  Neb.  62),  462. 

Bakewell,  Boyce  v.  (37  Mo.  492),  42. 
Halch,  Peckliam  v.  (49  Mich.  179),  478. 
Balcom,  Bissell  »-.  (39  N.  Y.  275),  343. 
Balcome,   Kingsley  v.  (4  Barb.  N.  Y. 

131),  161c,  212. 
Baldey  r.  Parker  (2  Barn.  &  C.  37), 

314,  325,  335. 

Baldock  v.  Atwood  (21  Oregon,  73),  116. 
Baldrey,  Head  v.  (6  Ad.  &  E.  468),  151. 
Baldwin,  Abbott  r.  (61  N.  H  583).  488. 
Baldwin  »».  Campfield  (4  Halst,  N.  J. 

Ch.  891),  82,  92. 

,  Comer  v.  (16  Minn.  172),  354. 

r.  Kerlin  (46  Ind  426),  885. 

,  Owings  v.  (8  Gill,  Md.  3:!7),  454, 

467. 
,  Owings  v.  (1  Md.  Ch.  Dec.  120) 

493. 


XV111 


TABLE   OF   CASES. 


Baldwin  c.  Palmer  (10  N.  Y.  232),  117ft. 

,  Payne  v.  (14  Barb.  N.   Y.  570), 

199 

,  Preble  v.  (6  Cush.   Mass.   649), 

117,  188,  269. 

,  Richman  v.  (1  Zab.  N.  J.  395), 

71. 

i'.  Squier  (31  Kans.  283),  463. 

— -,  Sterling  v.  (42  Vt.  306),  257, 257a. 

v.  Williams  (3  Met.   Mass.  365), 

297 
Balfe,  Kine  v.  (2  Ball  &  B.  343),  476, 

515. 
Ball,  Burney  v.  (24  Ga.  505),  276. 

i-.  Dunsterville  (4  T.  R.  313),  11. 

v.  Farley  (81  Ala.  288),  183. 

,  Houghtaling  v.  (19  Mo.  84),  302, 

321. 

,  Leake  v.  (116  Ind.  214),  188. 

Ballard  v.  Bond  (32  Vt.  355),  117. 

,  Cutsinger  v.  (115  Ind.  93),  454, 

493. 

,  Pierson  v.  (32  Minn.  263),  385. 

v.  Walker  (3  Johns.  N.   Y.  Cas. 

60),  366. 

v.  Ward  (89  Pa.  St.  358),  467. 

Ballet,  Halfpenny  v.  (2  Vern.  373).  445. 
Balliet  v.  Scott  (32  Wise.  174),  166ft. 
Ballingall  v.  Bradley  (16  111.  373),  371o. 
Ballou  v.  Sherwood  (32  Neb.  666),  385. 
Ballon  r.  Hale  (47  N.  H.347),  71. 
Balmain  v.  Shore  (9  Ves.  500),  259. 
Baltimore  &  E.  S.  R.  R.,  Webb  v.  (77 
Md.  92),  296a. 

Mf  g  Co.,  Equitable  Gas  Light  Co. 

v.  (63  Md.  285),  444,  445a,  446, 
460a. 

Baltzen  v.  Nicolay  (53  N.  Y.  467),  13oa. 
Bamberger,  Von  Trotha  v.  (15  Col.  1), 

94,  94a,  269,  476. 
Bament,  Bill  v.  (9  Mees.  &  W.  36),  325 

352a. 

Bampton  v.  Paulin  (4  Bing.  264),  208. 
B.  &  M.  R.  R.,  Cocheco  Aqueduct  Asso 

v.  (59N.  H.  312),  119,289. 
Banes,  Croyston  v.  (1  Eq.  Cas.  Abr 

19),  498. 

Banister,  Wells  v.  (4  Mass.  514),  119. 
Bank  v.  Eastman  (44  N.  H.  438).  61. 

Bank  of .     Indexed  under  name  o! 

place  of  location. 

v.  German-American  Ins.  Co.  (72 

Wise.  535),  298. 

Banks  v.  Crossland  (L.  R.  10  Q.  B  97) 
137a. 

,  Gould  v.  (8  Wend.  N.   Y.  562) 

298. 

v.  Harris  M'f'g  Co.  (20  Fed.  Rep 

667),  345a. 

Bannon  i\  Bean  (9  Iowa,  395),  263«. 
Bantock,  Hockley  v.  (1  Russ.  141),  62. 
Baptist   Ch.  v.  Brooklyn  Ins.  Co.   (1 
N.  Y.  305),  276a. 


Barber,  Case  v.  (T.  Raym.  450),  210, 

506. 

-,  Flinn  c.  (64  Ala.  193),  122. 
-  v.  Fox  (1  Stark.  270),  197. 
-v.  Fox  (2  Saund.  136),  190. 
-,  Lea  o.  ('2  Anst.  425,  note),  141. 
Barbour  v.  Barbour  (49  N.  J.  Eq.  429), 
463. 

,  Ruckle  v.  (48  Ind.  274),  264,  354. 

Barclay  v.  Bates  (2  Mo.  App.  139),  353. 
Bard   v.   Elston    (31   Kans.   274),   453, 
487. 

,  Kleeb  o.  (7  Wash.  41),  245. 

Barfield,  Adkinson  v.  (1  McCord,  S.  C. 

Law,  575),  205. 
iariukman    v.    Kuvkendall    (6   Blackf. 

Ind.  21),  118,  122,  346,376. 
Barker  v.  Bradley  (42  N.  Y.  316),  167. 
-v.   Bucklin   (2  Denio,  N.  Y.  45), 
166ft,  188,  212. 

,  Currier  v.  (2  Gray,  Mass.  226),  39. 

,  Parker  v.  (2  Met.  Mass.  423),  65, 

267. 

v.  Scudder  (56  Mo.  272),  165. 

v.  Smith  (92  Mich.  336),  348. 

,  Tibbs  v.  (1  Blackf.  Ind.  58),  465. 

,  Warren  v.  (2  Duv.  Ky.  155),  181. 

Barkhamstead  ?•.  Farmington  (2  Conn. 

600),  65. 
Barkley  v.  Rensselaer  R.  R.  (71  N.  Y. 

205),  327. 
Barkworth  v.  Young  (4  Drew.  1),  344, 

505a,  507. 
Barlow  r.  Wainwright  (22  Vt.  88),  38, 

39. 

Barnard,  Glengal  v.  (1  Keen,  769),  354, 
370,  400. 

,  Lyde  r.  (Tyrw.  &  G.  250),  181, 

182. 

,  Marcus  -v.  (4  Rob.  N.  Y.  210),  365. 

,  Pierpont  v.  (6  N.  Y.  279),  26. 

v.  Wliipple  (29  Vt.  401),  230. 

Barnekoff,  Flower  v.  (20  Ore.  132),  262. 
Barnes  v.  Boston  &  Maine  R.  R.  (130 
Mass.  388),  230,  453,  476. 

,  Brown  v.  (6  Ala.  694),  212,  505. 

,  Hanson  v.  (3  Gill  &  J.  Md.  359), 

346. 

,  King  v.  (109  N.  Y  267),  26W. 

,  Lockwood  v.  (3  Hill,  N.  Y.  128), 

118,  119,  122,  279,  280,  289. 

v.  Perine  (15  Barb.  N.  Y.  249),  2o3. 

Peters  v.  (16  Ind.  219),  42. 

'v.  Taylor  (27  N.  J.  Eq.  259),  93. 

v.  Teague  (1  Jones,  N.  C.  Eq.277), 

515. 

v.  Wise  (3  T.  B.  Mon.  Ky.  167), 

122ft,  123. 
Barnet  v.  Dougherty  (32  Pa.  St.  371), 

95. 
Barnett  v.  Glossop  (1  Bing.  N.  R  633), 

511. 
,  Hazen  r.  (50  Mo.  506),  72. 


TABLE   OF   CASES. 


XIX 


Barnett  v.  Pratt  (37  Neb.  349),  187. 
Barnewall,  Henderson  v.  (1  Younge  & 

J.  387),  369. 

Barney  v.  Forbes  (118  N.  Y.  680),  405. 
v.  Patterson  (6  Harr.  &  J.  Md.  182), 

78,  346. 
Barnhart,  Christy  v.  (14  Pa.  St.  260), 

476,  486. 

Barnum,  Wahl  v.  (116  N.  Y.  87),  282. 
Barnwell,  Guodhue  t;.  (Rice,  S.  C.  Eq. 

198),  71,  74,  456. 
Barr,  Bott  v.  (95  Ind.  243),  193. 
,  Cook  v.  (44  N.  Y.  156),  97,  100, 

104,  111,  Appendix,  p.  619. 

,  Logan  v.  (4  Harr.  Del.  646),  46. 

v.  O'Donnell  (76  Cal.  469),  509. 

Barrell  v.  Hanrick  (42  Ala.  60),  107. 
v.  Joy  (16  Mass.  221),  97,  98,  99, 

109. 
Barrett,  Elliot  v.  ( 144  Mass.  256),  3706, 

371a. 

,  Jelks  v.  (52  Miss.  315),  346a. 

v.  McHugh  (128  Mass.  165),  199. 

v.  Rolph  (14  Mees.  &  W.  348).  45. 

,  Thorndike  v.  (3  Greenl.  Me.  380), 

74a. 
v.  Thorndike  (1  Greenl.  Me.  73), 

59. 
Barrow  v.  Greenough  (3  Ves.  Jr.  151), 

98, 109. 
Barry  v.  Coombe  (1  Pet.  U.  S.  640),  346, 

357,  362,  371,  371a,  385,  519. 
v.  Law  (1  Cranch,  C.  C.  77),  178, 

355,  303. 

Phillimore  o.  (1  Camp.  513),  362. 

v.  Ransom  (12  N.  Y.  462),  161«, 

1610. 

,  Rice  i'.  (2  Cranch,  C.  C.  447),  164. 

Barstow  P.  Gray  (3  Greenl.  Me.  409), 

365. 
Bartholomew,  Atlee  v.  (69  Wise.  43), 

345a. 
,  Drybutter  o.   (2  P.  Wms.   127), 

268. 

,  Ward  v.  (6  Pick.  Mass.  409),  13. 

Bartlett  v.  Drake  (100  Mass.  174),  146, 

17. 
r.  Mystic  River  Corp.  (151  Mass. 

433),  278. 
«?.  Pickersgill  ( 1  Eden,  515),  90, 94n, 

1356,  517. 
v.  Wheeler  (44  Barb.  N.  Y.  162), 

283,  289,  290. 
Bartol,  Freeport  v.  (3  Greenl.  Me.  340), 

348,451. 

Barton  v.  Gray  (57  Mich.  622),  279,415. 
v.  Smith  (66  Iowa,  75),  128,  471, 

476. 

,  Walsh  v.  (24  Ohio  St.  28),  373. 

Bascom,   Templetons  v.  (33  Vt.   132), 

193,  212. 
Basford    v.  Pearson    (9   Allen,    Mass. 

387),  126,  146,  118,  126. 


Bash  v.  Bash  (9  Pa.  St.  360),  226. 
Bass,  Blair  v.  (4  Blackf.  Ind.  63'J),  93. 

v.  Walsh  (39  Mo.  192),  3196,  320. 

Membrun's  Heirs  v.  (82  Ala.  022), 

135. 

Bassett  v.  Camp  (54  Vt.  232),  319a. 
Bassler  v.  Niesly  (2  Serg.  &  R.  Pa.  352), 

467. 
Batchelder,  Howe  v.  (49  N.  H.  204),  256. 

,  Warren  v.  (16  N.  H.  580),  1666. 

Batdorf,  Wier  v.  (24  Neb.  83),  354. 
Bateman  v.  Butler  (124  Ind.  223),  1666. 
,  Combs  v.  (10  Barb.  N.  Y.  573), 

342. 
,  Jackson  v.  (2  Wend.  N.  Y.  570), 

90. 

v.  Maddox  (85  Tex.  646),  37. 

,  Mallet  v.  (L.  R.  1  C.  P.  163),  163, 

174, 193. 

v.  Phillips  (15  East,  272),  373,  385. 

Bates  v.  Babcock  (95   Cal.   479),  259, 

2(5 Id,  262. 

,  Barclay  v.  (2  Mo.  App.  139),  353. 

v.  Cliesebro  (32  Wise.  594),  343. 

v.  Coster  (1  Hun,  N.  Y.  400),  302. 

,  Darst  v.  (95  111.  493),  165. 

v.  Donnelly  (57  Mich.  521),  199a. 

v.  Moore  (2  Bail.  S.  C.  Law,  614), 

289. 

,  Mussey  v.  (65  Vt.  449),  65. 

,  Pratt  v.  (40  Mich.  37),  188. 

,  Puckett  »>.  (4  Ala.  390),  197. 

,  Rose  v.  (12  Mo.  30),  129. 

v  Sabin  (64  Vt.  511),  165. 

v.  Starr  (6  Ala.  697),  198. 

v.  Terrell  (7  Ala.  129),  121. 

v.  Youngeman  (142  Mass.  120),  184. 

Batson  r.  King  (4  Hurlst.  &  N.  739),  164. 
Battell  r.  Matot  (58  Vt.  271),  508. 
Batterbury,   Camden  v.  (5  C.  B.  N.  8. 

817),  38. 
Battersbee  v.  Farrington  (1  Swanst.  113), 

223 

Battle,  Gillespie  v.  (15  Ala.  276),  121, 

1226. 
,  Williamston   R.  R.   v.  (66  N.  C. 

540),  31. 
Batturs  v.  Sellers  (5  Harr.  &  J.  Md.  117), 

344,  346,  369. 
Bauman  v.  Holzhausen  (26  Hun,  N.  Y. 

505),  96. 
v.  James  (L.  R.  3  Ch.  App.  608), 

385. 
v.  Manistee  Co.   (94   Mich.  363), 

384. 

Batitz,  Krolm  v.  (68  Ind.  277),  505. 
Bawdes  v.  Amlmrst  (Finch,  Prec.  Ch. 

402),  355,  443. 

Baxter  r.  Browne  (2  W.  Bl.  973),  7. 
,  Kelner  v.  (L.  R.  2  C.   P.   174), 

364. 

v.  Kitch  (37  Ind.  554),  271. 

,  Sewell  v.  (2  Md.  Ch.  Dec.  447),  91 


XX 


TABLE   OF   CASES. 


Bayles  v.  Wallace  (56  Hun,  N.  Y.  428), 

197. 
Bayley,  Fitzmaurice  v.  (6  El.  &  B.  868), 

370a. 
,  Fitzmaurice  v.  (9  H.  L.  C.  79), 

385. 
Baylies  v.  Lundy  (4  L.  T.  N.  s.  176), 

3-26,  333. 

Bayne  v.  Wiggins  (139  U.  S.  210),  348. 
Bay nes,  Archer  v.  (5  Exch.  625),  37 la. 
v.  Chastain  (68  Ind.  376),  272, 

276a. 
Beach  v.  Allen  (7  Hun,  N.  Y.  441),  233. 

,  Clark  v.  (6  Conn.  159),  65. 

,   Weyer  v.  (14  Hun,  N.  Y.  231), 

187. 
Beadle  v.  Seat  (15  So.  Rep.  Ala.  243), 

85. 
Beal  v.  Brown   (13  Allen,  Mass.  114), 

116,  135. 
Beale,  Crafts  v.  (11  C.  B.  172),  190. 

v.  Saunders  (3Bing.  N.  R.  850),  39. 

Beaman  v.  Buck  (9  Smedes  &  M.  Miss. 

207),  448. 

v.  Russell  (20  Vt.  205),  161c. 

Bean,  Adams  r.  (12  Mass.  136),  406. 

,  Bannon  v.  (9  Iowa  395),  263a. 

v.  Valle  (2  Mo.  126),  391,  518. 

Beard,  Henderson  v.  (51  Ark.  483),  17, 

354a. 
Beard  v.  Linthicutn   (1  Md.  Ch.   Dec. 

345),  456,  493. 
Bearden,  Hazen  v.  (4  Sneed,  Tenn.  48), 

199. 
Beardslee,  Buckley  v.  (2  South.  N.  J. 

570),  391. 

v.  Morgner  (4  Mo.  App.  139),  1666. 

Beardsley,  Castle  v.  (10  Hun,N.  Y.343), 

391. 
v.  Duntley  (69  N.  Y.  577),  441c, 

444a,  475. 
Beaumont  v.   Brengeri  (5  C.  B.  301), 

317ct,  318ft,  321c,  324. 
Beavan,  Bushell  v.  (1  Bing.  N.  R.  103), 

177,  205,  370. 

Beazely,  Welford  v.  (3  Atk.  503),  99. 
Becar  v.  Flues  (64  N.  Y.  518),  272. 
Bechtel  v.  Cone  (52  Md.  698),  465. 
Beck,  Landers  v.  (92  Ind.  49),  441a. 

v.  Phillips  (5  Burr.  2827),  8. 

Becker  v.  Mason  (30  Kans.  697),  140. 
Beckett,  Chater  v.  (7  T.  R.  201),  146, 

191,  203,  210. 
,  Pitts  v.  (13  Mees.  &  W.  743),  346a, 

351,  352,  356. 

,  Schierman  v.  (88  Ind.  52),  1226. 

Beckwith  v.  Talbot  (2  Col.  639),  348. 

v.  Talbot  (95  U.  S.  289),  348. 

Bedall,  Buxton  v.  (3  East,  303),  308. 
Beddard,  Wilson  v.  (12  Sim.  28),  355a. 
Bedell  v.  Tracy  (65  Vt.  494),  118. 
Bedinger  v.  Whitamore  (2  J.  J.  Marsh. 

Ky.  552),  122. 


Beebe,   Benedict  v.   (11   Johns.  N.  Y. 
145),  233. 

-  ,  People  v.  (1  Barb.  N.  Y.  379),  298. 
Beech,  Taylor  v.  (1  Ves.  Sr.  297),  459, 

459a,  518,  527. 
Beecher,  Patton  v.  (62  Ala.  579),  267, 

439. 

Beekman  v.  Fletcher  (48  Mich.  555),  385. 
Beer  v.  London  Hotel  Co.  (L.  R.  20  Eq. 

412),  373. 
Beers  v.  Crowell  (Dudley,  Ga.  29),  298. 

-  v.  Culver  (1  Hill,  N.  Y.  589),  504. 
Bees  v.  Williams  (2   Cromp.  M.  &  R. 

581),  54. 
Beezley,  Southwell  v.   (5   Oreg.  143), 

278. 
Beidler,  St.  Louis  R.  R.  v.  (45  Ark.  17), 

3466. 

Beiler  v.  Devoll  (40  Mo.  App.  251),  272. 
Belding  v.  Manly  (21  Vt.  550),  65. 
Belknap  v.  Bender  (75  N.  Y.  446),  187, 

199a,  206. 

-  ,  Philbrook  v.  (6  Vt.  383),  122. 
Bell  v.  Andrews  (4  Dall.  Pa.  152),  226. 

-  ,  Bowlby  v.  (3  C.  B.  284),  296. 

-  ,  Creel  v.  (2  J.  J.  Marsh.  Ky.  309), 

-  ,  Fay  ».  (Hill  &  D.  N.  Y.  251),  204. 

-  ,  Gibbons  v.  (45  Tex.  417),   26  Id, 

262. 

-  v.  Hewitt  (24  Ind.  280),  275. 

-  v.  Howard  (9  Mod.  302),  430,  432. 

-  ,  McKnight  v.  (135  Pa.  St.  358),  70. 

-  v.  Morse  (6  N.  H.  205),  65. 

-  v.  Phyn  (7  Ves.  453),  259. 

-  ,  Price  v.  (91  Ala.  180),  465. 

-  ,  Rigge  v.  (5  T.  R.  471),  39. 

-  ,  Styron  v.  (8  Jones,   N.    C.  222), 


Bellamy,  Birch  v.  (12  Mod.  540),  505a. 

-  v.  Burrow  (Cas.  temp.  Talb.  97), 

99. 

-  v.  Ragsdale  (14  B.  Mon.  Ky.  364), 

119. 

Bellasis  v.  Compton  (2  Vern.  294),  82. 
Bellew,  Marsh  ».  (45  Wise.  36),  26,435. 
Bellingham    Boon    Co.,   Tingley   v.   (5 

Wash.  644),  357. 
Bellows,  Brown  v.  (4  Pick.  Mass.  178), 

3466,  378.  ' 

-  r.  Sowles  (57  Vt.  164),  157. 
Bells,  Clampet  v.  (39  Minn.  272),  373, 

375a. 
Bemis,  Williams  v.  (108  Mass.  91),  118, 

119,  126. 
Benbow  v.  Soothsmith  (76  Iowa,  151), 

198. 

-  v.  Townsend  (1  Myl.  &  K.  506), 

85. 

Bender,  Belknap  v.  (75  N.  Y.  446),  187, 
199a,  206. 

-  v.  Zimmerman  (26  S.  W.  Rep.  Mo 

973),  441a. 


TABLE   OF  CASES. 


XXI 


Benedict  v.  Beebe  (11  Johns.  N.  Y.  145), 

233. 

v.  Benedict  (5  Day,  Conn.  468),  29. 

,  Eastern  It.  K.  v.  (10  Gray,  Mass. 

212),  29tw. 
v.  Lynch  (1  Johns.  N.  Y.  Ch.  370), 

36(5. 
,  St.  John  v.  (6  Johns.  N.  Y.  Ch. 

Ill),  92. 
v.  Sherill  (Hill  &  D.  N.  Y.  219), 

400 

Benham,  Grippen  v.  (5  Wash.  589),  116 
Benjamin  v.  Matler  et  al.  (3  Col.  Ct.  of 

App.  227),  508. 

v.  Zell  (100  Fa.  St.  33),  269. 

Bennet,  Allen  v.  (3  Taunt.   169),  293, 

348,  349,  365,  373. 

,  Seymour  v.  (14  Mass.  266),  118. 

Bennett  v.  Hull  (10  Johns.  N.  Y.  364), 

293. 

v.  Pratt  (4  Denio,  N.  Y.  275),  405. 

v.  Scutt  (18  Barb.  N.  Y.  347),  28. 

v.  Solomon  (6  Cal.  134),  65. 

v.  Tiernay  (78  Ky.  680),  498. 

Bennington  Bk.,  Pratt  v.  (10  Vt.  293), 

06. 

Benson  v.  Hippius  (4  Bing.  456),  405. 
,  Wood  v.  (2  Cromp  &  J.  94),  143, 

148,  405. 
Bent  v.  Cobb  (9  Gray,  Mass.  397),  367, 

368. 

,  Cox  v.  (5  Bing.  185),  38. 

Bentall  v.  Burn  (3  Barn.  &  C.  423),  319a. 
Bentley,  Poole  o.  (12  East,  168),  7. 
Benton,  Packer  v.  (35  Conn.  343),  166a. 
v.  Pratt  (2  Wend.  N.  Y.  385),  135a, 

181. 

v.  Schulte  (31  Minn.  312),  505. 

Benziger  r.  Miller  (50  Ala.  206),  344. 
Berkmeir,  Nash  v.  (83  Ind.  536),  38. 
Berkstresser,  Russell  v.  (77  Mo.  417), 

117. 
Bernhardt  v.  Walls  (29  Mo.  App.  206), 

511. 
Bernier  v.  Cabot  M'f  g  Co.  (71  Me.  506), 

131. 
Berridge,  Jervis  v.  (L.  R.  8  Ch.  App. 

351),  384. 
,  Marshall  v.  (L.  R.  19  Ch.  D.  233), 

385. 

Berry,  Browning  v.  (107  N.  C.  231),  608. 
v.  Doremus  (30  N.  J.  L.  399),  1666, 

276,  289. 

Besshears  v.  Kowe  (46  Mo.  501),  166ft. 
Best  v.  Davis  (44  111.  App.  624),  135c. 
Betts,  In  re  (7  Reporter,  522),  229. 
Bevin,  Shepherd  v.  (9  Gill,  Md.  32),  454. 

487,  493. 
Be  vis,  Whitchiirch  v.  (2  Bro.  C.  C.  669), 

354,  446,  457,  460,  499,  605<r, 

615,  518,  622,  623,  529. 
Bexar  Building  Assoc.  v.  Newman  (25 

S.  W.  Rep.  Tex.  461),  188. 


Bezeley,  Welford  v.  (1  Wils.  118),  359. 
Bibb  v.  Allen  (149  U.  S.  481),  116,  361. 
Bice  v.  Marquette  Building  Co.  (96 

Mich.  24),  187. 
Bickford,  Demeritt  v.  (68  N.  H.  623). 

161c. 
Bicknell  v.  Bicknell  (31  Vt.  498),  64. 

,  Evans  v.  (6  Ves.  186),  181. 

,  Gill  v.  (2  Cush.   Mass.  356),  361, 

363a,  369. 
Biddell  i;.  Leeder  (1  Barn.  &  C.  327), 

142. 
Bigelow,  Ames  v.  (3  Me  Arthur,  D.  of  C. 

442),  441. 

v.  Amies  (108  U.  S.  10),  475. 

,  Cahill  v.  (18  Pick.  Mass.  369),  136, 

163,  197. 

,  Dorman  v.  (1  Fla.  281),  391,  406. 

,  Ithaca   Bapt.  Ch.   v.   (16   Wend. 

N.  Y.  28),  351,  369,  384. 
,  White  v.  (154  Mass.  593),  215a, 

346a. 

Bigg  v.  Whisking  (14  C.  B.  195),  335. 
Biggins  v.  Biggins  (133  111.  211),  94. 
Bigler  v.  Baker  (58  N.  W.  Rep.  Neb. 

1026),  11,477. 
Bill,  Aymar  v.  (6  Johns.  N.  Y.  Ch.  570), 

65. 
v.  Bament  (9  Mees.  &  W.  36),  325, 

352a. 
,  Cooper  v.   (3  Hurlst.  &  C.  722), 

319. 

Billin  v.  Henkel  (9  Col.  394),  316a. 
Billingslea  v.  Ward  (33  Md.  48).  476. 
Billingsley  v.  Dempewolf  (11  Ind.  414), 

199 
Billington  v.  Welsh  (5  Binn.  Pa.  129), 

465. 
Bindley,  Felthouse  v.  (11  C.  B.  N.  8. 

869),  138/C 

Bingham,  Heflin  v.  (66  Ala.  566),  265a. 
Binney,  Goddard  v.  115  Mass.  450), 

138e,  305,  316«. 

Birch  v.  Bellamy  (12  Mod.  640),  606a. 
v.  Liverpool  (9  Barn.  &  C.  392), 

282. 

t-.  Wright  (1  T.  11.  378),  35. 

Birchell  v.  Neaster  (36  O.  St.  331),  199a, 

212,  214. 
Birckhead  v.  Cummins  (33  N.  J.  L.  44), 

32o. 

Bird  v.  Blosse  (2  Vent.  361),  345a. 
v.  Boulter  (4   Barn.  &  Ad.  448), 

368,  369. 
v.  Gammon  (3  Bing.  N.  R.  883), 

193. 

v.  Iligginson  (6  Ad.  &  E.  824).  25. 

v.  Morrison  (12  Wise.  138),  26 1/ 

v.  Muhlinbrink  (1  Rich.  S.  C.  Law, 

199),  308.  310. 

v.  Munroe  (67  Me.  337),  136. 

,  Reeve  v.  (1  Cromp.  M.  &  H.  31) 

64,  57. 


XX11 


TABLE   OF   CASES. 


Birkmire.     See  Buekmyr. 
Bishop  v.  Bishop  (1  Kernan,  N.  Y.  123), 
256. 

v.  Little  (5  Greenl.  Me.  362),  268. 

v.  Tulbot  (6  Ves.  52,  note),  103. 

,  Tripp  v.  (56  Pa.  St.  424),  117. 

Bishop  of.     Indexed    under  name  of 

diocese. 
Bissell  v.  Balcom  (39  N.  Y.  275),  343. 

,  Morgan  v.  (3  Taunt.  65),  7. 

,  Rasch   v.   (52    Mich.  455),   308, 

321e. 

Bissig  v.  Britton  (59  Mo.  204),  161c. 
Bistolli,  Phillips  v.  (2  Barn.  &  C.  511), 

326. 
Black  w.  Black  (15  Ga.  449),  '261. 

,  Martin  v.  (20  Ala.  309),  190. 

,  Salsbury  v.  (119  Pa.  St.  200),  95. 

,  Story  v.  (5  Mont.  26),  467. 

Blackburn  v.  Mann  (85  111.  222),278a. 

,  Miller  v.  (14  Ind.  62),  44la. 

,  Pym  v.  (3  Ves.  Jr.  34),  52. 

Blackburne,  Chimney  v.  (1  H.  Bl.  117, 

note),  65. 

Blacker,  Tenant  v.  (27  Ga.  418),  13. 
Blacknall  v.  Parish  (6  Jones,  N.  C.  Eq. 

70),  360. 
Blagden  v.  Bradbear  (12  Ves.  466),  264, 

265,  369,  376,  515. 
Blagrave,  Pearce  v.  (3  Com.  Law,  338), 

195 
Blair  v.  Bass  (4  Blackf.  Ind.  539),  93. 

,  Curtis  v.  (26  Miss.  309),  13,  370a. 

,  Duncan  v.  (5  Denio,  N.  Y.  196), 

142,  147,  268. 

,  Norris  v.  (39  Ind.  90),  376. 

Blair  Co.  v.  Walker  (39   Iowa,  406), 

278a. 

Blaisdell,  Young  v.  (60  Me.  272),  138/ 
Blake  v.  Blake  (2  Bro.  P.  C.  241),  110. 
v.  Cole  (22  Pick.  Mass.  97),  161c, 

275. 

,  Hill  v.  (97  N.  Y.  216),  411. 

,  Rowland  v.  (97  U.  S.  624),  4416. 

v.  Parlin  (22  Me.  395),  198. 

,  Percival  v.   (2  Carr.  &   P.  514), 

333 
,  Sprague  v.  (20  Wend.  N.  Y.  61), 

337. 

v.  Voight  (134  N.  Y.  69),  276. 

Blakeney   v.  Ferguson    (8  Ark.  272), 

487. 
v.  Goode  (30  Ohio  St.  350),  276a, 

298. 

Blakey,  Clayton  v.  (8  T.  R.  3),  38. 
Blakstone,  Lavender  v.  (2  Lev.  147), 

223. 

Blalock  v.  Waggoner  (82  Ga.  122),  475. 
Blanchard.  Dexter  r.  (11  Allen,  Mass. 

365),  156,  204. 

,  Gibbs  i-.  (15  Mich.  292),  197. 

,   Mann   v.   (2   Allen,  Mass.  386), 

184. 


Blanchard,  Thompson  v,  (3  N.  Y.  335), 

157,  393. 

,  Scoby  v.  (3  N.  H.  170;,  93. 

v.  Weeks  (34  Vt.  589),  276,  277. 

Bland  v.  Talley  (50  Ark.  71),  96. 
Blanding  v.  Sargent  (33  N.  H.  239),  277, 

289. 
Blank,  Ranbitschek  v.  (80  N.  Y.  478), 

345a. 
Blankenship,  MaGee  v.  (95  N.  C.  563), 

346a. 
Blanton  v.  Knox  (3  Mo.  241),  289. 

v.  Knox  (3  Mo.  342),  2916. 

Bleakly  v.  Smith  (11  Sim.  150),  857. 
Blenkinsop  v.  Clayton  (7  Taunt.  597), 

321,  341. 
Bligh  v.  Brent  (2  Younge  &  C.  268), 

258 

Bliss  v.  Thompson  (4  Mass.  488),  268. 
Blocher,  Dougan  v.  (24  Pa,  St.  88),  485. 
Blodgett,  Bradley  v.  (Kirby,  Conn.  22), 

270. 
v.  Hildreth  (103  Mass.  484),  90,  93, 

441a. 

v.  Lowell  (33  Vt.  174),  199. 

,  Webster  v.  (59  N.  H.  120),  461. 

Blood  v.  Goodrich  (9  Wend.  N.  Y.  68), 

411. 

v.  Hardy  (15  Me.  61),  370a. 

Bloodgood,  McVay  v.  (9  Port.  Ala.  547), 

65. 

Bloom  v.  McGrath  (53  Miss.  249),  199. 
Bloomingdale,  Blumenthal  v.  (100  N.  Y. 

558),  38. 

Blore  v.  Sutton  (3  Mer.  237),  369,487a. 
Blosse,  Bird  v.  (2  Vent.  361),  345n. 
Blow,  Lawrence   v.  (2  Leigh,  Va.  29), 

223. 

v.  Maynard  (2  Leigh,  Va.  29),  223. 

Bloxsome  v.  Williams  (3  Barn.    &  C. 

232),  1386. 
Bluck  v.  Gompertz  (7  Exch.  862),  358, 

361. 
Bluett,  Knowlman  v.  (L.  R.  9  Exch.  1, 

307),  118,  276a,  283,289. 
Blumenthal  v.  Bloomingdale  (100  N.  Y. 

558),  38. 

Blunt  r.  Boyd  (3  Barb.  N.  Y.  212),  167. 
v.  Mahana  (20  Iowa,  142),  476, 

510a. 

Ely  the,  Haugh  v.  (20  Ind.  24),  289. 
Board  of  Commissioners  v.  Cincinnati 

Co.  (128  Ind.  240),  214a. 
Boardman   r.  Cutter  (128  Mass.  388), 

293a,  296a,  297«. 

,  Gillighan  v.  (29  Me.  79),  191,  391. 

v.  Mostyn  (6  Ves.  467),  467,  494, 

496,  497. 
v.  Spooner  (13  Allen,  Mass.  353), 

319«,  348,  367,  369,  384. 
Bobo  v.   Richmond  (25  Ohio  St.  115), 

75. 
Bock,  Rossman  v.  (97  Mich.  431),  199. 


TABLE   OF  CASES. 


XX111 


Boddy,  Gorman  v.  (2  Carr.  &  K.  145), 

326. 
Bodley,  Parker  v.  (4  Bibb,  Ky.  102),  80, 

376,  382«. 

Bodman,  Andre  v.  (13  Md.  241),  193. 
Boehm  v.   Campbell   (8  Taunt.   079), 

388,  404. 
Boese,  Murphy  v.  (L.  R.  10  Exch.  126), 

367,  368,  370a. 
Bogart  r.  De  Bussy  (6  Johns.  N.  Y.  94), 

13. 
Boggs,  Creigh's  Administrator  v.  (19 

W.  Va.  240),  515. 
Bog  Lead  Co.  v.  Montague   (10  C.  B. 

N.  8.  489),  321a. 
Bohannon  v.  Pace  (6  Dana,  Ky.  194), 

135. 

Bohm  r.  Bohm  (9  Col.  100),  445«. 
Bohn,  Ecker  v.  (45  Md.  278),  505. 
Bolland,  Flight  v.  (4  Russ.  298),  366. 
Boiling  v.  Munchus  (05  Ala.  558),  509. 
Bolton,  Brennan  v.  (2  Dru.  &  War.  349), 

454,  480. 

v.  Carlisle  (2  H.  Bl.  259),  44,  59. 

v.  Tomlin  (5  Ad.  &  E.  856),  32,  37, 

116. 
Bond,  Ballard  v.  (32  Vt  355),  117. 

,  Deutsch  v.  (46  Md.  479),  391. 

,  Goodnow  v.  (59  N.  H.  150),  391. 

,  Hodgkins  v.  (1  N.  H.  287),  360. 

,  Sprague  v.  (108  N.  C.  382),  269. 

,  Thompson  v.  (1  Camp.  4),  185. 

Bonnerv.  Campbell  (48  Pa.  St.  286), 

117. 
Bonnie  t;.   Denniston  (41   Mich.   292), 

199. 
Book  v.  Justice  Mining  Co.  (58  Fed. 

Rep.  106),  135. 
Booker,  Allen  v.  (2  Stew.  Ala.  21),  118, 

451. 
v.  Tally  (2  Humph.  Tenn.  308), 

195. 
Booth,  Aultman  v.  (95  Mo.  383),  135. 

v.  Eighmie  (60  N.  Y.  238),  193. 

v.  Hoskins  (75  Cal.  271),  441a. 

,  Jones  v.  (38  O.  St.  405),  433. 

v.  Turle  (L.  R.  16  Eq.  182),  94. 

Boothby,  Morley  r.  (3  Bing.  107),  388, 

395. 
Boozer,  Rowland  v.  (10  Ala.  694),  261/ 

r.  Teague  (27  S.  C.  348>,  476. 

Borchsenins  v.  Canutson  (100  111.82), 

204. 
Borden,   Fall   River  Co.  r.  (10  Cush. 

Mass.  458),  259,  260. 
Bordwell.  Dewey  v.  (9  Wend.  N.  Y.65), 

75. 
Boreing,  Persifnll  v.  (22  S.  W.  Rep.  Ky. 

440),  131. 
Boring  r.  Lemmon   (5  Harr.  &  J.  Md. 

223),  78. 

Bork  r.  Martin  (132  N.  Y.  280),  117. 
Borreit  c.  Gomeserra  (Bunb.  94),  486. 


Borrowscale  v.  Bosworth  (99  Mass.  378), 

332,  333. 
Borst  v.  Corey   (16  Barb.  N.  Y.  136), 

223. 

Boson  v.  Statham  (1  Eden,  508),  105. 
Bosseau  v.  O'Brien  (4   Bissell,  C.  C. 

31J5),  96. 
Bosshard,   Willard   v.  68   Wise.  454), 

187. 

Boston  v.  Fair  (148  Pa.  St.  220),  199. 
&  Maine  R.  11.,  Barnes  v.   (130 

Mass.  388),  230,  453,  476. 

v.  Nichols  (47  111.  353),  508. 

&  Worcester  R.  It.,  Brewer  «>.  (6 

Met.  Mass.  478),  75. 
Duck  Co.  v.  Dewey  (6  Gray,  Mass. 

446),  508. 
Bostwick  v.  Leach  (3  Day,  Conn.  476), 

234,  255a,  269. 
Bosworth,   Borrowscale   v.    (99   Mass. 

378),  332,  333. 

,  Main  v.  (77  Wise.  660),  130. 

,  Noble  v.   (19  Pick.   Mass.  314), 

234«. 
,  Stratford  v.  (2  Ves.  &  B.  341), 

37  la. 
Botsford  v.  Burr  (2  Johns.  N.  Y.  Ch. 

205),  85,  89,  92,  93,  96. 
Bott  v.  Barr  (95  Ind.  248),  193. 
Bolting  a.  Martin  (1  Camp.  317),  18, 

38,  45. 

Bouck,  Smith  v.  (33  Wise.  19),  298. 
Boulder   Valley   Co.   v.  Farnham   (12 

Mont.  1),  461. 
Boulter,  Bird  v.  (4  Barn.  &  Ad.  443), 

368,  369. 
Bourdillon,  Sari  v.  (1  C.  B.  N.  s.  188), 

373,  384. 
Bourland  v.  Peoria  County  (16  111.  538), 

346. 

Bourquemire.     See  Buckmyr. 
Boutwell  v.  O'Keefe  (32  Barb.   N.  Y. 

434),  451. 

Bovy's  Case  (1  Vent.  193),  223. 
Bowen  v.  Morris  (2  Taunt.  374),  366. 
,  Talbot  v.   (1  A.   K.   Marsh.  Ky. 

436),  370a,  508. 
Bower,  Allan  v.  (3Bro.  C.  C.  149),  385, 

456,  496. 
,  Nicholson   v.   (1  El.  &  E.   172), 

316e,  3276. 
Bowers  v.  Bowers  (95  Pa.  St.  477),  466 

v.  Cator  (4  Ves.  91),  518. 

,  Doidge  v.  (2  Mees.  &  W.  365),  38. 

v.  Oyster  (3  Penn.  Rep.  239),  04. 

Bowlby  v.  Bell  (3  C.  B.  284),  296. 
Bowles  v.  Woodson  (6  Grat.  Va.  78), 

354 
Bowman  v.  Conn  (8  Ind.  68).  303,  311. 

,  Morrison  r.  (29  Cal.  352),  13. 

,  Rifener  v.  (53  Pa.  St.  313).  59. 

Bowne,  Coles  v.  (10  Paige,  N.  Y.  526), 

365. 


XXIV 


TABLE   OF   CASES. 


Bowser,  Cravener  v.  (4  Pa.  St.  259),  60. 
Box  v.  Stanford  (13  Smedes  &  M.  Miss. 

93),  446,  448. 
Boxall,  Scorell  r.  (1  Younge  &  J.  396), 

251,  253. 

Boyce  v.  Bakewell  (37  Mo.  492),  42. 
v.  McCulloch  (3  Watte  &  S.  Pa. 

429),  435. 

v.  Murphy  (91  Ind.  1),  197. 

v.  Owens  (2  McCord,  S.  C.  Law, 

208),  204. 
v.  Washbura  (4  Hun,  N.  Y.  792), 

254c. 
Boyd,   Blunt  ».   (3  Barb.  N.  Y.  212), 

167. 
,  Chicago  B.  &  Q.  R.  R.  v.  (118  111. 

73),  138i-,  492a. 

,  Dock  v.  (93  Pa.  St.  92),  187. 

,  Dutch  v.  (81  Ind.  146),  135. 

v.  Graves  (4  Wheat.  U.  S.  513), 

75. 

v.  McLean  (1  Johns.  N.  Y.  Ch. 

582),  93. 
v.  Stone  (11  Mass.  342),  127,  263, 

267. 
Boydell  v.  Drummond  (11  East,  142), 

281a,  285,  286,  348. 
Boyers    v.    Elliott   (7    Humph.   Tenn. 

204),  259. 
Boy  kin  v.  Dohlonde  (1  Sel.  Gas.  Ala. 

502),  197. 

v.  Smith  (3  Munf.  Va.  102),  265, 

369. 
Boynton  v.  Housler  (73  Pa.  St.  453), 

95,  96«. 
,  Nelson  v.  (3  Met.  Mass.  396),  191, 

204,  212. 

v.  Veazie  (24  Me.  286).  317a,  319. 

Bozon  v.  Williams  (3  Younge  &  J.  150), 

62. 
Brabin  v.  Hyde  (32  N.  Y.  519),   342, 

342«. 
Bracegirdle  r.   Heald  (1   Barn.  &  Aid. 

722),  135ft,  286,  291. 
Bracken,  Rogers  v.  (15  Tex.  564),  13. 
Brackett  v.  Brewer  (71  Me.  478),  266. 
v.  Evans  (1  Cush.  Mass.  79),  117, 

269. 
Bradbear,    Blagden   v.  (12  Ves.   466), 

264,  265,  369,  376,  515. 
Bradberry,  Mannen  v.  (81  Ky.  153),  118. 
Bradbury,  Coffin  v.  (35  Pac.  Rep.  Idaho, 

"715),  337. 
Bradden,  McElroy  r.  (152  Pa.  St.  81), 

268. 

Braden,  Pettit  v.  (55  Ind.  201),  199. 
Bradley,  Ballingall  r.  (16111  373),371a. 

,  Barker  ».  (42  N.  Y.  316),  167. 

r.  Blodgett  (Kirby,Conn.22),  270. 

,  Hardman  v.  (85  111.  162),  198. 

v.  Holdsworth  (3  Mees.  &  W.  422), 

258,296. 
v.  Richardson  (23  Vt.  720),  213. 


Bradley,  Sneed  r.  (4  Sneed,  Tenn.  301), 

135. 

,  Wiley  v.  (60  Ind.  62),  119. 

Bradstreet,  Shannon  v.  (1  Scboales  & 

L.  72),  487a. 
Bradt,  Jackson  v.  (2  Caines,  N.  Y.  169), 

68. 
Brady  v.   Peiper   (1   Hilt.  N.  Y.  61), 

v.  Sackrider  (1  Sandf.  N.  Y.  514), 

197. 
Bragg,  Ameriscoggin  Bridge  Co.  v.  (11 

N.  H.  109),  29,  30. 

,  Mack  r.  (30  Vt.  571),  118. 

Brakefield  v.  Anderson  (87  Tenn.  206), 

498 
Brand  v.  Brand  (49  Barb.  N.  Y.  346), 

342a. 
v.  Whelan  (18  Brad.  111.  App.  Ct 

186),  161c. 
Brandt,  Sliarman  v.  (L.  R.  6  Q.  B.  720), 

367. 
Brannin  v.  Brannin  (18  N.  J.  Eq.  212), 

96. 

Brant  v.  Johnson  (46  Kans.  389),  193. 
Brantom  v.  Griffits  (1  C.  P.  Div.  349), 

254. 

Brantz,  Krohn  v.  (68  Ind.  277),  342. 
Brash,  Eckman  v.  (20  Fla.  763),  385. 
Brawdy  v.  Brawdy  (7  Pa.  St.  157),  473. 
Bray,  Ellis  v.  (79  Mo  227),  377. 

v.  Freeman  (2  Moore,  114),  157. 

,  Horn  r.  (51  Ind.  555),  161c. 

r.  Parcher  (80  Wise.  16),  203. 

Brayne,  Mollett  v.  (2  Camp.  103),  45, 

55. 
Braythwayte  v.  Hitchcock  (10  Mees.  & 

W.  497),  38. 
Brayton,  Urquhart   v.    (12  R.  L  169), 

166s,  169,  214c. 
Breckenridge  v.  Crocker  (78  Cal.  529), 

352,  374,  375a. 
Breckman,  Plummer  r.  (55  Me.  105), 

122. 
Breed,  Cushing  v.  (14  Allen,  Mass.  376), 

319a. 

v.  Hillhouse  (7  Conn.  523),  190. 

Brengeri,  Beaumont  v.  (5  C.  B.  301), 

317a,  318ft,  321c,  324. 
Brennan  r.  Bolton  (2  Dru.  &  War.  349), 

454,  480. 

,  Carlisle  v.  (67  Ind.  12),  461. 

,  Smith  r.  (62  Mich.  349).  327, 3276. 

Brenner  r.  Brenner  (48  Ind.  262),  215a. 
Brent,  Bligh  v.  (2  Younge  &  C.  268), 

258. 
v.  Green  (6  Leigh,  Va.  16),  264, 

265,  368,  369. 

Bresler  v.  Pendell  (12  Mich.  224),  197. 
Bressler,  Romann  v.  (32  Neb.  240),  329. 
Brettel  v.  Williams  (4  Exch.  623),  345a 
Brevard,  Mushat  v.  (4  Dev.  N.  C.  73), 

116. 


TABLE   OF   GASES. 


XXV 


Brewer  v.  Boston  &  Worcester  R.  R.  (5 

Met.  Mass.  478),  75. 

,  Brackett  v.  (71  Me.  478),  266. 

v.  Brewer  (19  Ala.  481),  465. 

v.  Dyer  (7  Cush.  Mass.  337),  42, 

166a, 166ft. 

,  Jones  v.  (1  Pick.  Mass.  314),  77. 

,  Middleton  o.  (Peake,  15),  508. 

Brewster  v.  Silence  (8  N.  Y.  207),  406, 

407. 
,  Skelton  v.  (8  Johns.  N.  Y.  376), 

169, 193. 
v.   Taylor  (63  N.  Y.   687),  316c, 


Briar  v.  Robertson  (19  Mo.  App.  66), 

291 

Brice  v.  King  (1  Head,  Tenn.  152),  166a. 
Brick  v.  Gannar  (36  Hun,  N.  Y.  52), 

272. 

Bricker  v.  Hughes  (4  Ind.  146),  246. 
Bridges,  Doe  v.  (1  Barn.  &  Ad.  847), 

49. 
w.  Purcell  (1  Dev.  &  B.  N.  C.  Law, 

492),  28. 
Bridgham  v.  Tileston  (5  Allen,  Mass. 

371),  42. 
Briggs  v.  Evans  (1  E.  D.  Smith,  N.  Y. 

192),  198. 

,  Gleason  v.  (28  Vt.  135),  193. 

v.  Munchon  (56  Mo.  467),  346ft. 

v.  Partridge  (64  N.  Y.  357),  373. 

,  Sutherland  v.  (1   Hare,  26),  456, 

480. 
Brigham,   Ellison  v.  (38  Vt.  64),  302, 

303. 

,  Skinner  v.  (126  Mass.  132),  12ft. 

Bright  v.  Bright  (41  111.  97),  467. 

,  Jerdein  v.  (2  Johns.  &  H.  325), 

505a. 
Brightman  v.  Hicks  (108  Mass.  246), 

193,  204,212. 

,  Rogers  v.  (10  Wise.  55),  278«. 

Briles  v.  Pace  (13  Ired.  N.  C.  Law,  279), 

41..77. 
Brillhart,   McConnell  v.   (17  111.  354), 

357. 
Brink,  Senrs  v.  (3  Johns.  N.  Y.  210), 

191,  391. 
Brinley  v.  Mann  (2  Cush.  Mass.  337), 

13. 
Brinser,  Anderson  v.  (129  Pa.  St.  376), 

467. 
Brisbane,  Humbert  v.  (25  S.  C.  506), 

385,  461. 
Brisbee,  Sobey  i;.  (20  Iowa,  105),  34, 

272. 
Briscoe,  Huddleston  v.  (11  Ves.  583), 

365. 

Brison,  Brison  v.  (75  Cal.  525),  95. 
Bristol  R.  R.,  Coombes  v.  (3  Hurlst.  & 

N.  610),  329. 
Bristow,   Waddington  v.  (2  Bos.  &  P. 

452),  238. 


Britain  v.  Rossiter  (L.  R.  11  Q.  B.  D. 

123),  118,  291,  460a. 
Britton  v.  Angier  (48  N   H.  420),  391. 
Britton,  Bissig  v.  (59  Mo.  204),  161c. 
Brizick  v.  Manners  (9  Mod.  284),  62. 
Broad  well  v.  Getman  (2  Denio,  N.  Y. 

87),  289. 

Brock  v.  Brock  (90  Ala.  86),  94. 
v.  Cook  (3  Port.  Ala.  464),  487. 

v.  Knower  (37  Hun,  N.  Y.  609) 

3:34. 
Brockhurst,  Whitbread  v.  (1  Bro.  C.  C. 

404),  441,  489,  615,  516. 
Brock  way  v.  Thomas  (36  Ark.  518),  39. 
Brock  well,  Winter  v.  (8  East,  308),  25, 

27a. 

Broder  v.  Conklin  (77  Cal.  330),  505. 
Broderick,£z;>«rte  (18Q.  B.  D.  766),  62. 
Brodie  v.  St.  Paul  (1  Ves.  Jr.  326),  347, 

451. 

Bromley  v.  Jefferies  (2  Vern.  415),  376. 
Bronson,  Jackson  v.  (19  Johns.  N.  Y. 

325),  65. 

v.  Wiman  (10  Barb.  N.  Y.  406), 

302,  303,  306. 

Brook,  Johnson  v.  (31  Miss.  17),  354. 
Brooking,  Crook  v.  (2  Vern.  50),  98. 
Brookins,  Green  v.  (23  Mich.  48),  159. 
Brooklyn  Ins.  Co.,  Baptist  Ch.  v.  (19 

N.  Y.  305),  276«. 
Brooks  v.  Dent  (1  Md.   Ch.  Dec.  523), 

391. 

,  Haigh  v.  (10  Ad.  &  E.  309),  403. 

,  Johnson  v.  (93  N.  Y.  337),  96. 

Broomfield,  Dixon  v.  (2  Chitty,  205), 

370. 
Brosnan    v.    McKee    (63    Mich.   454), 

261.7. 
Brothers  u.  Porter  (6  B.  Mon.  Ky.  106), 

84,  85,  87. 
Browder,  Carson  v.  (2  B.  J.  Lea,  Tcnn. 

701),  256. 
Brower,  Howard  v.  (37  O.  St.  402),  152, 

463,  509. 
Brown   v.  Adams  (1  Stew.   Ala.   61), 

161c. 
Brown  v.  Bailey  (159  Pa.  St.  121),  76. 

r.  Barnes  (6  Ala.  694),  212,  605. 

,  Beal  v.  (13  Allen,  Mass.  114),  116, 

135. 

v.   Bellows  (4  Pick.   Mass.  178), 

346ft,  378. 
,  Brown  v.  (33  N.  J.  Eq.  650),  230, 

354. 

,  Campbell  v.  (129  Mass.  23),  509. 

,  Church  v.  (21  N.  Y.  315),  400. 

v.  Conger   (8   Hun,   N.  Y.   625), 

215o,  216. 
,  Curtis    v.  (5   Cush.    Mnas.   488), 

193,  197,  204,  214r.  214rf. 

v.  Curtiss  (2  N.  Y.  225).  195. 

,  Dall  v.  (5  Cush.  MJIRS.  289),  72. 

,  Derrick  i:  (66  Ala.  112),  275. 


XXVI 


TABLE   OF   CASES. 


Brown,  Elliott  v.  (3  Swanst.  489,  note), 

259  260 
v.  Galley  (Hill  &  D.  N.  Y.  310), 

28. 

,  Gault  v.  (48  N.  H.  183),  280. 

v.  Hall  (5  Lans.  N.  Y.  177),  3186. 

v.  Harrell  (40  Ark.  429),  195. 

c.  Hazen  (11  Mich.  219),  188. 

v.  Hoag  (35  Minn.  373),  448a,  453, 

457a,  458. 

,  Hull  v.  (35  Wise.  652),  159. 

,  Hurley  v.  (98  Mass.  545),  385. 

v.  Kayser  (60  Wise.  1),  272. 

,  King  v.  (2  Hill,  N.  Y.  485),  118, 

126. 
,  Kinloch  v.   (1  Rich.  S.  C.  Law, 

223),  198. 

,  Kuhn  v.  (1  Hun,  N.  Y.244),  354a. 

,  Leroux  v.  (12  C.  B.  801),  136. 

,  Malins  v.  (4  N.  Y.  403),  65,  267, 

463. 

,  Mills  v.  (11  Iowa,  314),  161c. 

,  Muckleston   v.  (6  Ves.  52),  82, 

103. 
,  Mut.  Benefit  Ins.  Co.  v.  (30  N.  J. 

Eq.  193),  126. 
,  Pike  v.  (7  Cush.  Mass.  133),  166, 

188,  214rf. 

,  Potter  v.  (35  Mich.  274),  16  Ic. 

,  Price  v.  (4  S.  C.  144),  97. 

,  Pritchard  v.  (4  N.  H.  397),  93. 

,  Pumphry  r.  (5  W.  Va.  107),  85. 

v.  Rawlings  (72  Ind.  305),  135. 

,  Riddle  v.  (20  Ala.  412),  28. 

v.  Sanborn  (21  Minn.  402),  311. 

,  Scotten  v.  (4  Harr.  Del.  324),  126, 

131. 

v.  Slauson  (23  Wise.  244),  294a. 

v.  Strait  (19  111.  88),  1666. 

v.  Sutton   (129  U.  S.  238),   463, 

467,  474. 
,  Thomas   r.  (1    Q.  B.  Div.   714), 

122,  373 

v.  Throop  (59  Conn.  596),  285. 

,  Trapnall  v.  (19  Ark.  39),  96,  511. 

,  Venable  v.  (31  Ark.  564),  122. 

,  Wallace  v.  (10  N.  J.  Eq.  308),  497. 

v.  Webber  (38  N.  Y.  187),  214a. 

,  Webster  v.  (67  Mich.  328),  376. 

v.  Whipple  (58  N.  H.  229),  372. 

,  Williams  v.  (14  111.  200),  84. 

,  Wills  v.  (118  Mass.  137),  200a. 

v.  Wood  worth  (5  Barb.  N.  Y.  550), 

28. 

,  Young  v.  (53  Wise.  333),  400. 

Browne,  Baxter  v.  (2  W.  Bl.  973),  7. 
Browning  v.  Berry   (107   N.   C.   231), 

508. 

v.  Parker  (17  R.  I  188),  135. 

,  Stone  v.  (51  N.  Y.  211),  330 

,  Stone  v.  (68  N.  Y.  598),  316c,  316e, 

321. 
v.  Walbrun  (45  Mo.  477),  122. 


Brownson,   Crosby  v.  (2  Day,   Conn. 

425),  05 
,  Jackson  v.  (7  Johns.  N.  Y.  227), 

55. 
Bruce,  Bundy  v.  (61Vt.  619)  164. 

v.  Burr  (67  N.  Y.  237),  165. 

v.  Hastings  (41  Vt.  380),  2610. 

v.  Osgood  (113  Ind.  360)  74. 

,  Warwick  v.  (2  Maule  &  S.  208), 

239. 
Brunei,  Gallager   v.  (6  Cowen,  N.  Y. 

346),  174,  183,185. 
Brush  v.  Carpenter  (6  Ind.  78),  161c. 

,  Levy  v.  (45  N.  Y.  589),  96. 

Bryan  v.  Hunt  (4  Sneed,  Tenn.  543) 

411. 

v.  Jamison  (7  Mo.  106),  268. 

,  Smith  v.  (5  Md.  141),  236,  255a. 

v.  Whistler  (8  Barn.  &  C.  288),  25. 

Bryant,    Babcock   v.    (12   Pick.   Mass. 

133),  504. 

v.  Crosby  (40  Me.  9),  246. 

,  Foote  v.  (47  N.  Y.  544),  84. 

,   Hodgin   v.   (114   Ind.  401),  183, 

184. 
,  Lavthoarp  v.  (2  Bing.  N.  R.  735), 

3466,  365,  373. 

,  Philpot  v.  (4  Bing.  717),  190. 

,  Whitman  v.  (49  Vt.  512),  197. 

Buchanan,  Hamilton  v.  (112  N.  C.  403), 

96 
,  Moale  v.  (11  Gill  &  J.  Md.  314), 

454,  465. 

v.  Moran  (62  Conn.  83)  156,  157. 

v.  Padelford  (43  Vt.  64),  1666. 

Buck,  Beaman  r.  (9  Smedes  &  M.  Miss. 

207),  448. 

,  Grover  v.  (34  Mich.  519),  229. 

,  Groves  v.  (3  Maule  &  S.  178),  301. 

,  Johnson  v.  (35  N.  J.  L.  338),  348, 

368. 

,  McEIroy  r.  (35  Mich.  434),  376. 

v.  Piekwell  (27  Vt.  157),  133,  245, 

257,  354a,  376,  382. 

v.  Pike  (11  Me.  9),  87.  89. 

v.  Swazey  (35  Me.  41),  85,  87,  89, 

DO. 
v.  Warren  (14  Gray,  Mass.  122), 

86. 
Buckhouse  v.  Crosby  (2  Eq.  Cas.  Abr. 

32),  432. 
Buckingham  v.  Ludhun   (37  N.  J.  Eq. 

137),  118. 
v.  Osborne  (44  Conn.  133),  337, 

340. 
Buckland,  Floyd  v.  (Freeman,  Ch.  268), 

487. 
Buckley  v.  Beardslee  (2  South.  N.  J. 

570).  391- 
Bucklin,  Barker  v.  (2  Denio,  N.  Y.  45), 

1666,  188,  212. 
r.  Bucklin    (1  Abb.   N.    Y.  App. 

Dec.  242),  82. 


TABLE   OF   CASES. 


XXV11 


Buckmaster  v.  Harrop   (7  Ves.  341), 

309,  453,  454,  457,  475. 

v.  Harrop  (13  Ves.  456),  353,  367, 

463. 
Buckmyr    v.   Darnall    (2  Lcl.    Raym. 

1085),  155,  157,  196,  197. 
Bucknell,  Maule  v.  (50  Pa.  St.  39),  214, 

I14e. 

Buckner  v.  Ries  (34  Mo.  357),  294a. 
Buell,  Dixon  ».  (21  III.  203),  42. 
Bugbee  i:  Kendricken  (130  Mass.  437), 

197. 
Buhler,  Wentworth  v.  (3  E.  D.  Smith, 

N.  Y.  306 1  461. 
Bulkley,  Gilbert  v.  (5  Conn.  262),  60, 

231 

Bull  v.  Griswold  (19  III.  631),  246. 
,  Jackson  v.  (2  Caines,  N.  Y.  Cas. 

301),  78,  130. 
v.  McCrea  (8  B.  Mon.  Ky.  422), 

276. 

,  Winn  v.  (7  Ch.  Div.  29),  371a. 

Bullard  v  Smith  (139  Mass.  497),  2<J4a. 
Buller,  Mortlock  v.  (10  Ves.  292),  370a. 
Bullion  &  Exchange  Bank  v.  Otto  (59 

Fed.  Rep.  256),  135. 
Bulloch,  Crane   v.  (R.  M.   Charl.  Ga. 

318),  191. 
v.  Falmouth    Co.   (86   Ky.  184), 

296a. 

v.  Llovd  (2  Car.  &  P.  119),  159. 

Bullock  v.  Tschergi  (13  Fed  Rep.  345), 

316u. 
Bundy  t;.  Bruce  (61  Vt.  619),  164. 

,  Luey  v.  (9  N.  H.  298),  118. 

,  West  t-.(78  Mo.  407),  491a. 

Bunn,  Abrahams  v.   (4    Burr.    2255), 

517. 

Bunnell  v.  Taintor  (4  Conn.  568),  262. 
Bunster,  Croft  v.  (9  Wise.  603),  65. 
Buntin,  Somerby  v.  (118  Mass.  279), 

281a,  297a,  298. 

Bunting  v.  Darbyshire  (75  111.  408),  193. 
,  Draughan  v.  (9  Ired.  N.  C.  10), 

161c,  193. 
Burden  v.  Knight  (82  Iowa  584),  509. 

v.  Sheridan  (36  Iowa,  125),  96. 

Burdett  v.  Clay  (8  B.  Mon.  Ky.  287), 

65. 
Burdick    v.  Jackson    (14  Hun,  N.  Y. 

488),  136. 
Burgen,  Howard  v.  (4  Dana,  Ky.  137), 

276. 
Burgess,  Williams  v.  (10  Ad.  &  E.  499), 

293. 

Burget,  Fowler  v.  (16  Ind.  341),  135. 
Burghart,  Lane  »>.  (1  Q.  B.  933),  193. 
Burk,  Fitch  v.  (38  Vt.  687),  267. 
Burkam,  Hayes  i:  (51  Ind.  130),  94a, 

166. 
Burke  v.  Haley  (2  Gilm.  111.  614),  608. 

,  Tnrtnn  v.  (4  Wise.  110),  199. 

r.  Wilhcr  (42  Midi.  327),  108. 


Burkhalter  v.  Farmer  (5  Kans.  477), 

198. 

Burkham  v.  Mastin  (54  Ala.  122),  505. 
Burlingame  v.  Burlingame  (7  Cowen 

N.  Y.  92),  118,  271. 
Burn,  Bentall  ».  (3  Bam.  &  C.  423), 

319a. 
Burnett,  Mizell  v.  (4  Jones,  N.  C.  Law, 

2-19),  344,  354u. 
Burnette,  Swain  v.  (89  Cal.  564),  354, 

3546. 

Burney  v.  Ball  (24  Ga.  605),  276. 
Burnham,  Haussanau  v.  (69  Conn.  117), 

116. 
,  Smith  v.  (3  Sumn.  C.  C.  435),  84, 

90,  136,  229,  26 le. 
Burns,  Allison  r.  (107  1'a.  St.  60),  491a. 

v.  Daggett  (141  Mass.  368),  467. 

,  Faulks    r.   (1   Green,  N.  J.   Ch. 

250),  60. 
v.  Fidelity  Real    Estate  Co.   (52 

Minn.  31),  411. 
v.  Lynde  (6  Allen,  Mass.  305),  126, 

146. 
v.  Sutherland  (7  Pa.  St.  103),  493, 

494. 
Burnside,  Kingsbury  v.  (58    111.  336), 

111 

v.  Merrick  (4  Met.  Mass.  537),  259. 

,  Sampson  v.  ()3  N.  H.  264).  28. 

Burr,  Botsford  v.  (2  Johns.  N.  Y.  Ch. 

205),  85,  89,  92,  93,  96. 

,  Bruce  v.  (67  N.  Y.237),  165. 

i?.  I)e  la  Vergne  (102  N.  Y.  415), 

298. 
v.  Wilcox  (13  Allen,  Mass.  269), 

200a,  204. 
Burrell,  Crookshank  r.  (18  Johns.  N.  Y. 

68),  301,  811. 
,  Drummond  r.  (13  Wend.  N.  Y. 

307),  283. 
v.  Highleyman  (33  Mo.  App.  183), 

309a." 
Burroughs,  Richards  v.  (62  Mich.  117), 

236. 
Burrow,  Bellamy  v.  (Cas.  temp.  Talb. 

97),  9'J. 

v.  Greenough  (3  Ves.  Jr.  152),  94. 

Burrows,  Whitaker  v.  (71  Hun,  N.  Y. 

478),  118. 

Burson,  McCrowell  v.  (79  Va.  290),  118. 
Burt,  Root  v.  (118  Mass.  621),  117,  118. 
,  Traphagen  v.  (67  N.  Y.  30),  96, 

262. 

v.  Wilson  (28  Cal.  682).  498,  515. 

Burton  v.  Curyea  (40  111.  320),  819a. 

v.  Gray  (L.  R.  8  Ch.  932),  626. 

,  Greene  v.  (69  Vt.  423),  198. 

v.  Scherpf(l  Allen,  Mass.  133),24. 

,  Weeks  v.  (7  Vt.  67),  181. 

Bush,  Fontaine  v.  (40  Minn.  141),  8276. 
,  Hammond  r.  (8  Abb.  N.  Y.  Pr 

166),  64. 


xx  vm 


TABLE   OF   CASES. 


Bush,    Hart    v.    (El.    B.   &   E.   494), 

3276. 

,  Hoyle  v.  (14  Mo.  App.  408),  117. 

,  Mitchell  v.  (7  Cowen,  N.  Y.  185), 

233. 

,  Scott  v.  (26  Mich.  418),  122. 

v.   Sprague  (51    Mich.   41),    181, 

183,  1846. 

Bushee  v.  Allen  (31  Vt.  613),  197. 
Bushel  v.  Wheeler  (15  Q.  B.  442,  note), 

315,  316^,  321,  3276,  332,  333. 
Bushell  r.  Beavan  (I  Bing.  N.  R.  103), 

177,  205,  370. 
Bushong,  Schaaber  v.  (105  Pa.  St.  514), 

187. 
Busick  v.  Van  Ness  (44  N.  J.  Eq.  82), 

511. 
Butcher,   Chambers  v.  (82  Ind.   508), 

441. 

v.  Stapely  (1  Vern.  363),  467. 

v.  Steuart  (11  Mees.  &  W.  857), 

193,  403. 

Butler,  Bateman  v.  (124  Ind.  223),  1666. 
,  Darling  v.  (45  Fed.   Rep.  332), 

229. 
,  Lawrenson   v.   (1  Schoales  &  L. 

13),  366. 
,  McDermot  v.  (5  Halst.  N.  J.  Law, 

158),  65. 

,  Sheldon  v.  (24  Minn.  513),  165. 

,  Whiting  v.  (29  Mich.  122),  229. 

Butt,  Butt  v.  (91  Ind.  305),  267. 

,  Senior  v.  (1  T yrw.  283,  note),  138, 

213. 
Buttemere   v.   Hayes   (5  Mees.  &  W. 

456),  54,  231,  511,  518. 
Butterfield,   Tapley  v.  (1   Met.  Mass. 

515),  14a. 

Butters,  Herrin  v.  (20  Me.  122),  281a. 
Butterworth,   Ashcroft   v.    (136   Mass. 

511),  378. 

Butts,  Grimes  v.  (65  III.  347),  69. 
Buxton  v.  Bedall  (3  East,  303),  308. 
-, —  v.  Rust  (L.  R.  7  Exch.  279),  3466, 

348,  349. 
Buzzard,  Winship  v.  (9  Rich.  S.  C.  Law, 

103),  308. 
Buzzell  v.  Gallagher  (28  Wise.  678),  70, 

Byam  v.  Robbins  (6  Allen,  Mass.  63), 

75. 
Byassee  v.   Reese   (4  Met.   Ky.   372), 

245,  255a,  325. 
Byerly,  Clabaugh  v.  (7  Gill,  Md.  354), 

267. 

,  Myers  v.  (45  Pa.  St.  368),  482. 

Byers  v.  Locke  (93  Cal.  493),  269. 
Bynum,  Olcott  v.  (17  Wall.  U.  S.  44), 

86. 
Byrd,  Charles  v.  (29  S.  C.  544),  476. 

v.  Odem  (9  Ala.  755),  487. 

Byrne  v.  Romaine  (2  Edw.  N.  Y.  Ch. 

445),  488. 


Byrnes,   Hutchins   v.  (9  Gray,   Mass. 

3b7),  9,  13. 
,  Williams  c.  (8  L.  T.  N.  s.  69),  373. 


C. 


Caballero  v.  Slater  (14  C.  B.  300),  399, 

406. 
Cabanne,  Tray  lor  v.  (8  Mo.  App.  131), 

357. 
v.   Raskins    (3  Pick.  Mass.   83), 

289,  290,  357. 
Cabot  M'f  g  Co.,  Becnier  i>.  (71  Me.  506), 

131. 
Bank  v.  Morton  (4  Gray,  Mass. 

156),  183. 
Caddick  v.  Skidmore  (2  De  G.  &  J.  51), 

2616. 

Cade  o.  Davis  (96  N.  C.  139),  118. 
Caden,  Holmes  o.  (57  Vt.  Ill),  465. 
Cadman   v.    Markle    (76   Mich.   448), 

118. 

Cadwell,  Dudley  v.  (19  Conn.  218),  65. 
Cady  v.  Shepherd  (11  Pick.  Mass.  400), 

14a. 
Cage,  Harrison  v.  (1   Ld.  Raym.  386), 

215,  216o. 
Cagger  v.  Lansing  (43  N.  Y.  550),  117, 

354a. 
Cahill  v.  Bigelow  (18  Pick   Mass.  369), 

135,  163,  197. 
Cain  v.  McGuire  (13  B.  Mon.  Ky.  340), 

255a. 
Calder,  Givens  v.  (2  Desaus.  S.  C.  Ch. 

171),  460,  483,  511. 
Caldwell,  Louisville  R.  R.  v.   (98  Ind. 

245),  172. 

,  Marqueze  v.  (48  Miss.  23),  365. 

v.  School  City  of  Huntington  (132 

Ind.  92),  346. 

,  Williams  v.  (4  S.  C.  100),  174. 

Calhoun,  Ewins  r.  (7  Vt.  79),  181. 
i'.  Hays  (8  Watts  &  S.  Pa.  127), 

74. 
Calkins  v.  Chandler  (35  Mich.  320),  36, 

187. 
v.  Lockwood  (17  Conn.  174),  319, 

320. 
Callan,  Carey  v.  (6  B.  Mon.  Ky.  44), 

91. 
Callow,  Clarke  v.  (46  L.  J.  Q.  B.  Div. 

63),  505a. 
Camden  v.  Batterburv  (5  C.  B.  N.  s. 

817),  38. 

Cameron  v.  Austin  (65  Wise.  652),  122, 
453. 

»  Clark  (11  Ala.  259),  187. 

v.  Tompkins  (72  Hun,  N.  Y.  100), 

134. 

v.  Ward  (8  Ga.  245),  445a. 

Cammeyer,  Rucker  v.  (1  Esp.  105),  351, 

370a. 


TABLE   OF   CASES. 


XXIX 


Camp,  Bassett  v.  (54  Vt.  232),  319a. 
,  Dowdle  v.  (12  Johns.  N.  Y.  451), 

12-2. 

v.  Moreman  (84  Ky.  635),  3466. 

,  Parsons  v.  (11  Conn.  525),  27. 

Campbell,  Acker  v.   (23   Wend.  N.  Y. 

372),  293. 
,  Argenbrijjht  v.  (3  Hen.  &  M.  Va. 

144),  224,  354a,  498,  612,  524, 

633. 

,  Boehm  v.  (8  Taunt.  679),  388,404. 

,  Bonner  ».  (48  Pa.  St.  286),  117. 

v.  Brown  (129  Mass.  23),  509. 

o.  Campbell  (65  Barb.  N.  Y.  639), 

122a. 

v.  Campbell  (2  Jones  N.  C.  Eq. 

364),  95. 

,  Carlisle  v.  (76  Ala.  247),  193. 

v.  Dearborn  (109  Mass.  130),  441a. 

v.  Fetterman's  Heirs  (20  W.  Va. 

398),  370a. 
v.  Findley  (3  Humph.  Tenn.  330), 

166a,  391. 

Gillett  v.  (1  Denio,  N.  Y.  520),  65. 

Lake  v.  (18  111.  106),  7. 

Ragan  v.  (2  Mackey,  D.  of  C.  28), 

96a 

Salb  v.  (65  Wise.  405),  118. 

Shipman  v.  (79  Mich.  82),  384. 

Stewart  v.  (58  Me.  439),  204. 

v.  Taul  (3  Yerjr.  Tenn.  548),  263. 

v.  Thomas   (42  Wise.  437),  354a, 

3546. 
,  Underwood   v.    (14  N.  H.  393), 

391. 
Campfield,  Baldwin  v.  (4  Halst.  N.  J. 

Ch.  891),  82,92. 
Canady,    Edenfield    v.    (60  Ga.   456), 

1666. 
Cann,  Adlington   v.   (3  Ark.  141),  82, 

103,  105,  107. 
Cannady,  Stark  v.  (3  Litt.  Ky.  399), 

78,  86. 
Cannon,  Cannon  v.  (26  N.  J.  Eq.  316), 

3546. 

,  Gainus  v.  (42  Ark.  603),  84. 

v.  Handley  (72  Cal.  133),  354a. 

Canutson,  Borchsenius  v.  (100  111.  82), 

204. 
Capen,   Greeley-Btirnhnm    Co.   v.   (23 

Mo.  App.  301),351a. 
Caperton  v.  Gray  (4  Yerg.  Tenn.  563), 

197,  370n 
Capes,  Weddall  v.  (1  Mees.  &  W.  60), 

43,  47. 

Cardell  v.  McNiel  (21  N.  Y.  836),  165. 
Careless,  Stewart  v.  (2  Bro.  C.  C.  665, 

note),  615,  618. 

Carey  v.  Callan  (6  B.  Mon.  Ky.  44),  91. 
Carleton  v.  Redington  (21  N.  H.  291), 

75. 
Carlisle,  Bolton  v.  (2  H.  Bl.  259),  44, 


Carlisle  r.  Brennan  (67  Ind.  12),  461. 

v.  Campbell  (76  Ala.  247),  193. 

Carmack  v.  Masterson  (3  Stew.  &  P. 

Ala.  411),  134,385. 
Carman  v.  Smick  (3  Green,  N.  J.  Law, 

252),  293. 

Carney  v.  Mosher  (97  Mich.  654),  246. 
Carpenter,  Brush  v.  (6  Ind.  78),  161c. 
,  Claflin  v.  (4  Met.  Mass.  680),  245, 

251,  253,  255. 

v.  Galloway   (73  Ind.  418),  311, 

411. 

v.  Ottley  (2  Larv*.  N.  Y.  451),  94. 

,  Reynolds  v.  (3  Chand.  Wise.  31), 

391. 
,  Schieffelin   v.   (15  Wend.  N.  Y. 

400),  50,  54. 

,  Singer  v.  (125  111.  117),  135. 

,  Wallace  v.  (85  111.  690),  90. 

,  White  v.  (2  Paige,  N.  Y.  217),  86. 

Carr,  Ex  parte  (3  Ves.  &  B.  108),  181. 

v.  Carr  (62  N.  Y.  251),  95. 

,  Clute  v.  (20  Wise.  631),  29. 

,  Hopkins  v.  (31  Ind.  260),  164. 

,  Hoxie  v.  (1  Sumn.  C.  C.  173),  84. 

v.  Leavitt  (54  Mich.  540),  269. 

o.  McCarthy  (70  Mich.  258),  276. 

,  Mews  v.  (1   Hurlst.  &  N.  484), 

353,  353a. 

v.  Nat.  Security  Bank  (107  Mass. 

45),  166«,  1666. 

,  Thompson  v.  (5  N.  H.  510),  13. 

,  Whitehead  v.  (5  Watts,  Pa.  368), 

226. 

v.  Williams  (17  Kans.  575)..  229. 

Carrington  v.  Anderson  (5  Munf.  Va. 

32),  368,  369. 
v.  Roots  (2  Mees.  &  W.  248),  133, 

136,  13&>,  251. 
,  U.  S.  Bank  v.  (7  Leigh,  Va.  566), 

80,  98. 
Carroll,  Hart  v.  (85  Pa.  St.  608),  344, 

354,  448,  493. 

,  Maydwell  r.  (3  Harr.  &  J.  Md. 

361),  76. 
,  Newnan  r.  (3  Yerg.  Tenn.  18), 

493 
v.  Powell  (48  Ala.  298),  264,  376, 

467. 
,  Savage  v.  (1  Ball  &  B.  265),  456, 

476,  480,  497. 

,  Sharp  v.  (66  Wise.  62),  342. 

,  Smith  v.  (112  Pa.  St.  390),  186. 

Carrolls  v.  Cox   (15  Iowa,  455),   476, 

483. 
Carroway    r.    Anderson    (1    Humph. 

'Tenn.  61),  75,  605. 
Carson,  Baker  r.  (1   Dev.  &  B.  N.  C. 

Eq.  381),  490. 

v.  Browdcr  (2  B.  J.  Lea,  Tenn. 

701),  256. 

,  Westmoreland  v.  (76  Tex.  619), 

354a. 


XXX 


TABLE   OF   CASES. 


Carter  v.  Harlan  (6  Md.  20),  28. 

,  Hosford  v.   (10  Abb.  N.  Y.  Pr. 

452),  229. 
,  Jones  v.  (4  Hen.  &  M.  Va.  184), 

13. 
,  Mathers  v.  (7  Brad.  111.  App.  Ct. 

225),  1666. 
v.  Palmer  (11  Bligh,  N.  R.  397), 

96,  111. 
,  Reinheimer  v.  (31  Ohio  St.  579), 

289. 
,  Rice  v.  (11  Ired.  N.  C.  Law,  298), 

106o. 
,  Scudder  v.  (43  III.  App.  Ct.  252), 

204 
,   Sutherland   v.    (52   Mich.    151), 

157. 
v.  Toussaint  (5  Barn.  &  Aid.  855), 

3186,  323. 

,  Troll  v.  (15  W.  Va.  567),  81,  94. 

v.   Worthington   (82   Ala.    334), 

223. 

Caruthers  v.  Williams  (21  Fla.  485),  96. 
Carver  v.  Lane  (4  E.  D.  Smith,  N.  Y. 

168),  326,  334. 
Carville  v.  Crane   (5  Hill,  N.  Y.  483), 

161c,  174,  177. 
Cary,  Ellis  r.  (74  Wise.  176),  118. 

v.  Whitney  (48  Me.  626),  74a. 

Case  v.  Barber  (T.  Raym.  450),  210, 

506. 
,  Mead  v.  (33  Barb.  N.  Y.  202), 

302,  308. 

v.  Seger  (4  Wash.  492),  261/ 

Casler  v.   Thompson   (3  Green,  N.  J. 

Ch.  59),  487. 

Cason  v.  Cheely  (6  Ga.  554),  308. 
,  Gwathney  v.   (74  N.  C.  5),  353, 

384. 

,  Suggett  r.  (26  Mo.  221),  278a. 

Cassell  v.  Collins  (23  Ala.  676),  233. 
Cassiday,  Dean  v.  (88  Ky.  572),  471. 
Casson  v.  Roberts  (31  Bear.  613),  122. 
Castle   v.   Beardsley   (10  Hun,  N.  Y. 

343).  391. 
v.  Sworder  (6  Hurlst.  &  N.  828), 

316/,  3186,  324,  333. 
Castleberry,   Georgia  Co.  v.  (49  Ala. 

104),  164. 

Castleman  v.  Sherry  (42  Tex.  59),  461. 
Castling  v.  Aubert  (2  East,  325),  155, 

164,  202,  203,  210. 
Castner,  Rhoades  v.  (12  Allen,  Mass. 

130),  346. 
Caston,  Cobbold  v.  (8  Moore,  460),  310. 

v.  Moss  (1  Bail.  S.  C.  Law,  14), 

,  212 

Castor,  Elston  r.  (101  Ind.  426).  353. 
Castro  v.  lilies  (13  Tex.  229),  267. 

,  Peralta  v.  (6  Cal.  354),  607«. 

Catalan!  r.  Catalani  (124  Ind.  54),  445a 
Cathcart  McOtiat  v.  (84  Ind.  567),  270. 
Catlett  v.  Bacon  (33  Miss.  269),  467. 


Catlett  v.  Dougherty  (21  111.  App.  116), 

207. 
,  Dougherty  v.  (129  111.  431),  229, 

451. 
Catlin  v.  Jackson  (8  Johns.  N.  Y.  520), 

78. 

v.  King  (5  Ch.  Div.  660),  373,  505a. 

,  Simonds  v.  (2  Caines,  N.  Y.  61), 

77,  78,  265. 
Caton  v.  Caton  (L.  R.  1  Ch.  App.  137), 

448,  459,  459a,  471. 
Cator.  Bowers  v.  (4  Ves.  91),  518. 

,  Redhead  v.  (1  Stark.  12),  158, 405. 

Cauffrnan,  Pancake  v.  (114  Pa.  St.  113), 

441a. 
Caulkins  v.  Hellman  (14  Hun,  N.  Y. 

330),  327. 
Cavanaugh  v.  Jackson  (91  Cal.  580), 

75. 
Cave  v.  Hastings  (L.  R.  72  B.  D.  125), 

3466.,  348. 
v.  MacKenzie  (46  L.  J.  Ch.  564), 

96. 
Cawthorne  v.  Cordrey  (13  C.  B.  N.  8. 

406),  291. 
,  Whitaker  v.  (3  Dev.  N.  C.  Law, 

389),  26. 

Caylor  v.  Hoe  (99  Ind.  1),  140,  439. 
Cayuga  R.  R.  v.  Miles  (13  Hun,  N.  Y. 

170),  28, 272. 
Center  v    McQuesten  (18  Kans.  476), 

118. 
Central  R.  R.,  Hetfield  v.  (29  N.  J.  L. 

571),  31. 

Co.  r.  Moore  (75  Wise.  170),  305. 

,  Vanderbilt  v.  (43  N.  J.  Eq.  669), 

327. 
Chace,   Hawkins    v    (19    Pick.    Mass. 

502),  346,  357,  3TOa. 
Chadbourne,  Hearne  v.  (65  Me.  302), 

291. 
Chadwick,  Morrison  v.  (1C.  B.  266), 

55. 
Chaffee,  Eden  v.  (160  Mass.  225),  193. 

,  Hall  v.  (13  Vt.  150),  28. 

Chalfant,  Wilson  r.  (15  Ohio,  248),  29. 
Chalker,  Watrous  r.  (7  Conn.  224),  116. 
Chamberlain  v.  A  gar  (2  Ves.  &  B.  259), 

442. 
,  Lucas  v.   (8  B.  Mon.  Ky.  276), 

161c. 

,  Patton  v.  (44  Mich.  5),  100. 

Chamberlaine  r.  Chamberlaine  (Freem. 

Ch.  34),  94,  442. 
Chamberlin,  Clark  v.  (112  Mass.  19), 

348. 

,  Holbrook  v.  (116  Mass.  155),  Her. 

,  Sanborn  v.  (101  Mass.  409),  368, 

505,  509. 

,  Tunison  v.  (83  111.  378),  12. 

Chambers,  Allen  v.  (4  Ired.  N.  C.  Eq. 

125),  448,  510a,  519. 
v.  Butcher  (82  Ind.  508),  441. 


TABLE   OF  CASES. 


XXXI 


Chambers,  Cooper  o.  (4  Dev.  N.  C.  261) , 

193  212 
v.  Massey  (7  Ired.  N.  C.  Eq.  286), 

518. 
,  Me  Dowel  v.  (1  Strobh.  S.  C.  Eq. 

347),  352. 
Chambliss  v.  Smith  (30  Ala.  366),  95, 

484,  485. 
Champagne,  Quinn  v,  (38  Minn.  322), 

385. 
Champion  v.  Doty  (31  Wise.  190),  198. 

v.  Munday  (85  Ky.  31),  117. 

v.  Plummer  (1  Bos.  &  P.  N.  R. 

252),  372,  374. 

v.  Plummer  (5  Esp.  240),  363. 

i\  Short  (1  Camp.  63),  K35. 

Champlain  Trans.  Co.,  Sherman  v.  (31 

Vt.  162),  276a. 
Champlin,  Champlin  v.  (136  111.  309), 

84. 

,  Marden  r.  (17  R.  I.  423),  346. 

v.  Parish  (11  Paige,  N.  Y.  405), 

365,  518. 
Chandler,  Calkins  v.  (35  Mich.  320), 

187. 
v.  Davidson  (6  Blackf.  Ind.  367), 

212. 

,  Mims  v.  (21  S.  C.  480),  384. 

Chanter  v.  Dickinson  (5  Man.  &  G.  253), 

298. 
Chapin  v.  Lapham  (20  Pick.  Mass.  467), 

156,  158,  161c. 
v.  Merrill   (4  Wend,  N.  Y.  657), 

158,  161c. 

,  Noyes  v.  (6  Wend.  N.  Y.  461),  77. 

v.  Potter  (1  Hilton,  N.  Y.  366), 

337. 
Chaplin,  Roche  v.  (1  Bail.  S.  C.  Law, 

419),  156. 
v.  Rogers  (1  East,  192),  3186,  321, 

322. 
Chapline  v.  Atkinson  (45  Ark.  67),  174, 

212 
Chapman,  Farnham  v.    (61   Vt.  395), 

159. 

v.  Gray  (15  Mass.  439),  33. 

v.  Partridge  (5  Esp.  250),  351. 

v.  Ross  (12  Leigh,  Va.  505),  159. 

,  Taylor  v.  (Peake,  Add.  Cas.  19), 

66. 

Chappel  v.  Marvin  (2  Aik.  Vt.  79),  318. 
Chappell  v.  McKnight  (108  111.  670), 

370a. 
Charles  v.  Byrd  (29  S.  C.  544),  476. 

,  Foster  v.  (6  Bing.  896),  181. 

,  Thornton  v.  (9  Mees.  &  W.  802), 

351. 
Charnley,  Freeland  v.  (SO  Ind.   132), 

354a,  3646. 

v.  Hansbtiry  (14  Pa.  St.  16),  493. 

Charpiot  v.  Sigerson  (25  Mo.  63),  473. 
Chartier,  Gonznles  »--.  (63  Tex.  3f.),278a. 
Chase,  Abbey  v.  (6  Cusli.  Mas*.  54),  13. 


Chase  v.  Day  (17  Johns.  N.  Y.  114), 

197,  199. 

v.  Fitz  (132  Mass.  359),  215a,  266. 

,  Goodman  v.  (1  Barn.  &  Aid.  297), 

1U3. 
,  Lawrence   v.  (54  Me.  196),  266, 

508,  509. 
v.  Lowell  (7  Gray,  Mass.  33),  346, 

376. 

v.  Peck  (21  N.  Y.  684),  64. 

Chastain,  Baynes  v   (68  Ind.  376),  272, 

276a. 

v.  Smith  (30  Ga.  96),  96. 

Chater  v.  Beckett  (7  T.  R.  201),  146, 

191,  203,  210. 
Cheairs,  Perkins  v.  (2  Baxt.  Tenn.  194), 

86. 
Cheek,  Shortrede  v.  (1  Ad.  &  E.  67), 

403. 

Cheely,  Cason  v.  (6  Ga.  554),  308. 
Cheesman  v.  Wiggins  (122  Ind.  352), 

161. 
Cheevers,   McCormick   v.    (124  Mass. 

262),  269. 

Chenery  v.  Dole  (39  Me.  162),  71. 
Cheney,  Ecliols  v.  (28  Cal.  157),  13. 

,  Lee  v.  (85  Tenn.  707),  345a,  354a. 

Chenoweth  v.  Lewis  (11  Rep.  380),  229. 
Cherry  v.  Heming  (4  Excli.  631),  U,  288. 
v.  Long  (Phil.  N.  C.  Law,  466), 

384. 
,  Winters   v.  (78  Mo.  344),   117, 

285. 
Chesapeake  Co.  v.  Young  (3  Md.  480), 

456,  493. 

Chesebro,  Bates  v.  (32  Wise.  594),  343. 
Chesebrough,  Downer  v.  (36  Conn.  39), 

136. 

v.  Pingree  (72  Mich.  438),  354. 

Chesley  v.  Frost  (1  N.  H.  145),  59. 

,  Howe  v.  (56  Vt.  727),  608 

Chester,  Alderman  v.  (34  Ga.  152),  276. 
t-.  Dickerson  (54  N.  Y.  1),  2616, 

262. 
Cheves,  Neil  v.  (1  Bail.  S.  C.  Law,  537), 

424. 
Chicago  B.  &  Q.  R.  R.  r.  Boyd  (118 

111.  73),  138t,  49_)a. 
,  Attachment  Co  v.  Davis  Sewing 

Machine  Co.  (142  111.  171),  38, 

46. 
,  M.  &  S.  P.  R.  R.  Price  v.  (40  Mo. 

App.  189),  197. 
,  Nat.  Bank,  Nelson  v.  (48  111.  36), 

172. 
Conl  Co.  v.  Liddell  (69  111.  639), 

157,  511. 
Dock  Co.  v.  Kinzie  (49  111.  289), 

135. 
R.  R.,  Western  Union  Tel.  Co.  v. 

(86  111.  246),  84ft«. 
Chic-heater   r.  Vass  (1  Munf.  Va.  98), 

221. 


XXX11 


TABLE   OF   CASES. 


Chick,  Anderson   v.  (Bail.    S.  C.   Eq. 

118),  869. 
Child  v.  Comber  (3  Swanst.  423,  note), 

366,  515. 
,  Fraser  v.  (4  E.  D.  Smith,  N.  Y. 

153),  270,  445a. 
v.  Godolphin    (1  Dick.   39,    498, 

505a,  515,  523,  525,  529. 

v.  Pearl  (43  Vt.  224),  2156. 

Childers  v.  Talbott  (4  New  Mex.  168), 

37. 
Childress,  Macy  v.  (2  Tenn.  Ch.  438), 

16  lc. 
Chiles  v.  Woodson  (2  Bibb,  Ky.  71), 

80,  263a. 
Chimney  v.  Blackburne  (1  H.  Bl.  117, 

note),  65. 

Chippendale,  Exparte  (1  Deac.  67),  62a. 
Chitwood,  Kibby  v.  (4  T.  B.  Mon.  Ky. 

91),  344,  505,  509. 
Chouteau,  Lear  v.  (23  111.  39),  508. 
Christenson   v.  Wooley  (41  Mo.  App. 

53),  3466. 
Christie  v.  Simpson  (1  Rich.  S.  C.  Law, 

407),  369. 
Christofferson,  Amort  v.  (59  N.  W.  Rep. 

Minn.  304),  199. 
Christy  v.  Barnhart  (14  Pa.  St.  260), 

476,  486. 
Chronicle  Pub.  Co.,  Fallen  v.  (1  Mc- 

Arthur,  D.  of  C.  485),  2766, 

281a,  448. 
Chumasero,  O'Bannon  r.  (3  Mont.  419), 

405. 
Church  ».  Brown  (21  N.  Y.  315),  400. 

v.  Kidd  (3  Hun,  N.  Y.  254),  96n. 

v.  Ruland  (64  Pa.  St.  432),  94. 

v.  Sterling  (16  Conn.  388),  84, 45fi. 

Church   of  the   Advent  v.  Farrow   (7 

Rich.  S.  C.  Eq.  378),  385,  448, 

493. 

Churchill  v.  Hulbert  (110  Mass.  42),  27, 
,  Manter  »;.   (127  Mass.   31),  190, 

505. 

,  Thacher  v.  (118  Mass.  108),  82. 

Churchman,  Cook  v.  (104  Ind.  141),  184. 
Cincinnati  Co.,  Board  of  Commission- 
ers v.  (128  Ind.  240),  214a. 
R.  R  ,  Huston  v.  (21  Ohio  St.  35), 

369. 
Cipperley  v.    Cipperley   (4  Thomp.    & 

C.  N.  Y.  342),  95. 
Cirkel,  Iverson  v.  (57  N.  W.  Rep.  Minn. 

800),  508. 
City  National  Bank,  Lahay  v.  (15  Col. 

339),  183. 

Bank  v.  Phelps  (86  N.  Y.  484),  400. 

Clabaugh  v.  Byerly    7  Gill,  Md.  354), 

267. 
Claflin  v.  Carpenter  (4  Met.  Mass.  580), 

245,  251,  253,  255. 
Clagett  v.  Kilbourne   (5  Black,  U.  S. 

348),  259. 


Clampet  v.  Bells  (39  Minn.  272),  373, 

375«. 
Clancy   v.  Piggott  (2  Ad.  &  E.  473), 

388,  404. 
Clanton,  Coward  v.  (79  Cal.  23),  260, 

2616. 

-  v.  Scruggs  (95  Ala.  279),  509. 
Clapp,  Colt   v.    (127    Mass.  47(5),    93, 

294a. 

-  v.  Lawton  (31  Conn.  95),  166a,  188, 


-  v.  Shephard  (23  Pick.  Mass.  228), 

297. 

-  v.  Webb  (52  Wise.  638),  204. 
Clark,  Armiger  v.  (Bunbury,  111),  366. 

-  v.  Beach  (6  Conn.  159),  65. 

-  ,  Cameron  v.  (11  Ala.  259),  187. 

-  r.  Cliamberlin  (112  Mass.  19),  348. 

-  v.  Clark  (122  111.  388),  476. 

-  t'.  Condit  (18  N.  J.  Eq.  358),  229. 

-  o.  Duffey  (24  Ind.  271),  294. 

-  v.  Dunham  Lumber  Co.  (86  Ala. 

220),  183. 

-  ,  Dyer  v.  (5  Met.  Mass.  562).  259. 

-  ,  Forsyth  v.  (3  Wend.  N.  Y;  637), 

87. 

-  v.  Graham  (6  Wheat.  U.  S.  577), 

76. 

-  v.  Hall  (6  Halst.  N.  J.  78),  206. 

-  v.  Hurd  (79  Mich.  130),  184. 

-  v.  Jones  (85  Ala.  127),  187. 

-  v.  Jones  (87  Ala.  474),  197. 

-  ,  Kellogg  v.  (23  Hun,  N.  Y.  393), 

281a. 

-  v.  Labreche  (63  N.  H.  397),  3186. 

-  v.  Levi  (10  N.  Y.  Leg.  Obs.  184), 

156. 

-  P.  Lumber  Co.  (86  Ala.  220),  181. 

-  v.  Nichols  (107  Mass.  547),  305. 

-  r.  Pendleton  (20  Conn.  495),  215, 

275,  279,  280. 

-  ,  Russell  v.  (7  Cranch,  C.  C.  69), 

181. 

-  i'.  Shultz  (4  Mo.  235),  233. 

-  ,  Stewart  v.  (13  Met.  Mass.  79),  6. 

-  ,  Suydam  v.  (2  Sandf.  N.  Y.  133), 

351. 

-  v.  Taylor  (68  Ala.  453),  508. 

-  v.  Terry  (25  Conn.  395),  122a. 

-  v.  Tucker  (2  Sandf.  N.  Y.  157), 

327,  354a. 

-  ,  Webster  v.  (60  N.  H.  36),  384. 

,  Weed  r.  (4  Sandf.  N.  Y.  31),  403. 


Clarke  v.  Callow  (46  L.  J.  Q.  B.  Div. 

53),  505a. 
,  Dorsey  v.  (4  Harr.  &  J.  Md.  551), 

91,  93,  96. 

r.  Fuller  (16  C.  B.  N.  8.  24),  385. 

,  Lente  v.  (22  Fla.  515),  385. 

,  Lexington  v.  (2  Vent.  223),  146. 

v.  Mc-Auliffe  (81  Wise.  108),  261a. 

26  If. 
v.  Spence  (4  Ad.  &  E.  448),  138e. 


TABLE   OF   CASES. 


XXX1U 


Clarke,  Wilson  v.  (1  Watts  &  S.  Pa. 

654),  2'2G. 
Clarkson,  Edelin  v.  (3  B.  Mon.  Ky .  331), 

122ft,  619. 

,  Powers  i;.  (17  Kans.  218),  256. 

Clary  v.  Marshall  (5  B.  Mon.  Ky.  269), 

130. 
Clason  v.  Bailey  (14  Johns.  N.  Y.  484), 

352,  305,  366. 
,  Merrill  v.  (12  Johns.  N.  Y.  102), 

352. 

,  Sanders  v.  (13  Minn.  379),  214ft. 

Clay,  Burdett  v.  (8  B.  Mon.  Ky.  287), 

65. 

,  Coe  v.  (5  Bing.  440),  37a. 

,  Mudgelt  v.  (6  Wash.  103),  487. 

,  Perkins  v.  (54  N.  H.  518),  2826. 

v.  Tyson  (19  Neb.  630),  166ft. 

,  Wagnon  r.  (1  A.  K.  Marsh.  Ky. 

257),  164,  504. 

v.  Yales  (1  Hurlst.  &  N.  73),  308. 

Clayton  v.  Andrews  (4  Burr.  2101),  293, 

300. 

v.  Blakey  (8  T.  R.  3),  38. 

,  Blenkinsop  v.  (7  Taunt.  697),  321, 

341. 

Cleaver,  While  v.  (75  Mich.  17),  117. 
Cleaves  v.  Foss  (4  Greenl.  Me.  1),  369. 
Clement  v.  Durgin  (5  Greenl.  Me.  9), 

28,  29,  30,  270. 

Clerk  v.  Wright  (1  Atk.  12),  376,  460. 
Cleveland,  Farley  v.  (4  Cow.  N.  Y.432), 

169. 

,  Hicks  v.  (48  N.  Y.  84),  138/. 

Cleveland  Co.,  Himrod  Co.  v.  (22  Ohio 

St.  451),  345a. 

Click  v.  McAfee  (7  Port.  Ala.  62),  193. 
Clifford,  Eppich  v.   (6  Col.   493),  384, 

391. 

v.  Luhring  (69  111.  401),  199a. 

v.  Turrell  (1   Younge  &  C.  138), 

611. 

,  Whitehead  r.  (5  Taunt.  518),  45. 

Clinan  r.  Cooke  (1  Schoales  &  L.  22), 

344n,  347,  370n,  385,  409,  448, 

462,  469,  496. 
Clinton  Bank  v.  Studemann  (74  Iowa 

104),  188. 
Clissey,  Antonio  v.  (3  Rich.  S.  C.  Law, 

201),  195. 
Cloninger  r.  Summit  (2  Jones,  N.  C. 

Eq.  513),  94. 

Clopper  r.  Poland  (12  Neb.  69),  165. 
Clopton,    O'Fallon    v.    (89   Mo.   284), 

457a. 
Cloud  r.  Greasley  (125  111.  313),  345a, 

467,  509. 
Clongh,    Leonard  r.  (133  N.  Y.  292), 

2080. 

,  Pinnock  r.  (16  Vt.  600),  89,  96. 

Clute  r.  Carr  (20  Wise.  631),  29. 
Clyde,  Whetham  v.  (Pa.  Leg.  Gaz.  53), 

94. 


Clymer  v.  De  Young  (54  Pa.  St.  118), 

187,  2146. 
Coates,  Collier  v.  (17  Barb.  N.  Y.  471), 

122. 

,  Lindsley  v.  (1  Ohio,  243),  76. 

,  Urann  v.  (109  Mass.  581),  98,  99, 

109. 
Coates  worth,  Heacock  r.  (Clarke,  N.  Y. 

Ch.  84),  96. 
Cobb,  Atwood  r.  (16  Pick.  Mass.  227), 

378,  382,  385. 
,  Bent  v.  (9  Gray,  Mass.  397),  367, 

368. 

v.  Hall  (29  Vt.  510),  122. 

,  Wright  v.  (5  Sneed,  Tenn.  143), 

354a,  376. 

Cobbold  v.  Caston  (8  Moore,  460),  310. 
Coble,  Hudson  v.  (97  N.  C.  260),  265. 
Coburn  v.  Ellenwood  (4  N.  II.  99),  74a. 
Cocheco  Aqueduct   Asso.  r.    B.  &  M. 

R.  R.  (59  N.  H.  312),  119,  289. 
Cochran,  Corbet t  v.  (3  Hill,  S.  C.  41), 

193. 
,    Hallenbeck  v.   (20   Hun,  N.  Y. 

416),  319,  343 
,  Newell  v.  (41  Minn.  374),  2616, 

262. 

,  Spann  v.  (63  Tex.  240),  165. 

v.  Ward  (5  Ind.  App.  89),  136. 

,   Whitney  v.   (1   Scam.  III.  209), 

125. 
Cock  v.   Moore  (18  Hun,  N.  Y.   31), 

187. 
Cocker  v.  Cowper  (1  Cromp.  M.  &  R. 

418),  24. 

Cocking  v.  Ward  (1  C.  B.  858),  117a. 
Cockran,  Cofran  v.  (5  N.  H.  458),  13. 
Codman  v.  Winslow  (10  Mass.  146), 

74a. 

Cody  v.  Quarterman  (12  Ga.  386),  S2. 
Coe  v.  Clay  (5  Bing.  440),  37a. 

c.  Duffield  (7  Moore,  252),  405. 

,  Hunt  v.  (15  Iowa,  197),  451. 

v.  Turner  (5  Conn.  86),  60. 

Coffey,  Griffin  v.  (9  B.  Mon.  Ky.  452), 

229,  267. 
Coffin  r.  Lunt  (2  Pick.  Mass.  70),  32. 

v.  Mclntosh  (9  Utah,  315),  262. 

Coffman  >:   Hampton   (2   Watts  &  S. 

Pa.  377),  335. 

Cofran  v.  Cockran  (6  N.  H.  458),  13. 
Cohen,  McBrayer  v.  (92  Ky.  479).  350. 

r.  Stein  (61  Wise.  608),  118. 

,  Strohecker  r.  (1  Speers,  S.  C.  Law, 

349),  172. 

Colin,  Condert  c.  (118  N.  Y.  809),  38 
Colbourn  v.  Dawson  (10  C.  U  765), 

405. 
Colclough,  Walsh  v.  (6  U.  S.  Cir.  Ct. 

App.  114;  56  Ft-d.  Rep.  778), 

117. 
Colcord,   Pierce    v.    (113    Mass.    372), 

4416. 


XXXIV 


TABLE   OF   CASES. 


Coldham  v.  Showier  (3  C.  B.  312), 406. 
Cole,  Blake  v.  (22  Pick.  Mass.  97), 

161c,  275. 
v.  Dyer  (1  Cromp.  &  J.  461),  388, 

404. 

v.   Hutchinson    (34  Minn.  410), 

163,  197. 

i7.  Potts   (10  N.  J.  Eq.  67),  454, 

476. 

v.  Singerly  (60  Md.  348),  291. 

,  Southern  Ins.  Co.  v.  (4  Fla.  359), 

298. 
v.  White  (1  Bro.  C.  C.  409,  note), 

483. 

v.  Wright  (70  Ind.  179),  272. 

Colehorn,  Roby  v.  (135  111.  300),  96. 
Colehour,  Morrill  v.  (82  III.  618),  2616. 
Coleman  v.  Bailey  (4  Bibb,  Ky.  297), 

370a. 

r.  Eyre  (45  N.  Y.  38),  2616,  294a. 

v.  Garrigues  (18  Barb.  N.  Y.  60), 

370. 
v.  Gibson  (1  Moo.  &  R.  168),  3 16?, 

333. 

v.  Smith  (55  Texas,  254),  75. 

v.  Upcot  (5  Vin.  Ab.  528),  366. 

,  Wilson  v.  (81  Ga.  297),  380. 

Coles  v.  Bowne  (10  Paige,  N.  Y.  526), 

365. 
v.  Pilkington  (L.  R.  19  Eq.  174), 

459,  467. 
v.  Trecothick  (9  Ves.  234),  3466, 

359,  369,  370a. 

Coley,  Welsh  v.  (82  Ala.  363),  135. 
Colgrave,  Dickerson  v.  (100  U.  S.  583), 

467. 
Colgrove  v.  Solomon  (34  Mich.  494), 

460. 

Colleton,  Sweet  v.  (96  Mich.  391),  1666. 
Collett,  Gordon  v.  (102  N.  C.  532),  3466. 
Collier  v.  Coates  (17  Barb.  N.  Y.  471), 

122. 
,  Liggett  r.  (56  N.  W.  Rep.  Iowa, 

417),  3276. 
,  Morrison  v.    (79   Ind.   417),  135, 

444a. 
,  Rogers  v.  (2  Bail.  S.  C.  Law,  581), 

209. 

,  Sheffield  v.  (3  Kelly,  Ga.  82),  28. 

,  Wheeler  v.  (Moo.  &  M.  123),  373. 

Collins,  Cassell  v.  (23  Ala.  676),  233. 

,  Corkins  v.  (16  Mich.  478),  204. 

v.  Decker  (70  Me.  23),  259. 

,  Kleeman   v.   (9  Bush,  Ky.  460), 

136,  291,  354a. 

,  Lehman  v.  (69  Ala.  127),  64. 

,  Peltier  ».  (3  Wend.  N.  Y.  459), 

351,  384. 

,  Rineer  v.  (156  Pa.  St.  343),  384. 

v.  Thayer  (74  111.  138),  122. 

v.  Tillou  (26  Conn.  368),  441a. 

Collins  Co.  r.  Marcy  (25  Conn.  239), 

28. 


Collis,  Dobson  v.  (I  Hurlst.  &  N.  81), 

282. 

Colman  v.  Packard  (16  Mass.  39),  231. 
Colt  v.  Clapp    (127    Mass.    476),    93, 

294a. 

v.  Nettervill   (2  P.   Wms.   304), 

296. 

v.  Root  (17  Mass.  229),  188. 

Colvin  «;.  Williams  (3  Harr.  &  J.  Md. 

38),  296a. 
Comber,  Alexander  v.  (1   H.  Bl.  20), 

293. 
,  Child  v.   (3   Swanst.  423,  note), 

366,  515. 

Combes's  Case  (9  Coke,  75a),  13. 
Combs  v.  Bateman   (10   Barb.   N.  Y. 

573),  342. 
,  Grigsby  v.  (21   S.  W,  Rep.  Ky. 

37),  75. 

P.  Harshaw  (63  N.  C.  198),  155. 

,  Price  v.  (7  Halst.  N.  J.  188),  178. 

Comer  v.  Baldwin  (16  Minn.  172),  354. 
Comes  v.  Lamson  (16  Conn.  246),  122a, 

131. 

Coming,  Ex  parte  (9  Ves.  115),  62. 
Commins  v.   Scott  (L.   R.  20  Eq.  11), 

3466,  373. 
Commonwealth  v.   Dudley  (10  Mass. 

403),  60. 

v.  Ray  (3  Gray,  Mass.  447),  356. 

Compton,  Bellasis  r.  (2  Vern.  294),  82. 
v.  Martin  (5  Rich.  S.  C.  Law,  14), 

289. 

,  Peter  v.  (Skin.  353),  274,  290. 

Comstock,  Kimball  v.  (14  Gray,  Mass. 

508),  183,  184. 

v.  Morton  (36  Mich.  277),  161c, 

188. 

v.  Ward  (22  111.  248),  272. 

Conant  v.  Little  (1  Pick.  Mass.  189), 

77. 

,  Skinner  v.  (2  Vt.  453),  198. 

Condit,  Clark  v.  (18  N.  J.  Eq.  358),  229. 

,  Bechtel  v.  (52  Md.  698),  465. 

,  Spencer  v.   (1   Met.  Mass.  283), 

307. 

Coney  v.  Timmons  (16  S.  C.  378),  469. 
Conger,  Brown  v.  (8  Hun,  N.  Y.  625), 

215a,  216. 
Conhaim,   George  v.  (38  Minn.  338), 

384. 
Conkey  v.  Hopkins   (17  Johns.  N.  Y. 

113),  159. 

Conklin,  Broder  v.  (11  Cal.  330),  505. 
,  Marshman  v.  (21  N.  J.  Eq.  546), 

94a. 
Conlin,  Smith  v.  (19  Hun,  N.  Y.  234), 

276,  282. 

Conn,  Bowman  v.  (8  Ind.  58),  303,  311. 
Conner,  Drury  v.   (6  Harr.  &  J.   Md. 

288),  465. 

,  Embury  v.  (3  N.  Y.  511),  270. 

v.  Lewis  (16  Me.  268),  89. 


TABLE  OF  CASES. 


XXXV 


Conner  v.  Williams  (2  Rob.  N.  Y.  46), 

1666,  2146. 

Connerat  i:  Goldsmith  (6  Ga.  14),  150. 
Conniff,  Peyson  v.  (32  Neb.  269),  157. 
Connit,  Lowber  c.  (36  Wise.  176),  345a. 
Connor  v.  Hingtgen  (19  Neb.  472),  498. 
Conolly  v.  Kettlewell  (1  Gill,  Md.  2(50), 

197,  198. 

Conover,  Lloyd  v.  (Dutch,  N.  J.  47),  71. 
Conradt  v.  Sullivan  (45  Ind.  180),  204. 
Constable,  Walker  v.  (1  Bos.  &  P.  306), 

309. 

Constans,  Randall  v.  (33  Minn.  329),  94. 
Conway  v.  Sherron  (2  Cranch,  C.  C. 

80),  487. 

-  Ins.  Co.,  Falis  v.  (7  Allen,  Mass. 

46),  229. 
Conzelman,  Spalding  v.  (30  Mo.  177), 

479. 

Cooch  v.  Goodman  (2  Q.  B.  680),  9,  13. 
Cook  v.  Barr  (44  N.  Y.  150),  97,  100, 

104,  111,  Appendix,  p.  619. 

-  ,  Brock  v.  (3  Port.  Ala.  404),  487. 

-  v.  Churchman  (104  Ind.  141),  184. 

-  v.  Doggett  (2  Allen,  Mass.  439), 

119,  122. 

-  ,  Groves  i*.  (88  Ind.  169),  280,  285. 

-  ,  Kaufman  v.  (114  111.  1),  483. 

-  ,  McGinnis  v.  (57  Vt.  36),  117. 

-  ,  Miller  v.  (23  N.  Y.  495),  408a. 

-  v.  Pridgen  (45  Ga.  331),  31. 

-  v.  Stearns  (11  Mass.  633),  26,  29. 

-  ,  Thomas  v.  (2  Barn.  &  Aid.  119), 

63. 

-  ,  Thomas  v.   (8  Barn.  &  C.  728), 


Cooke,  Clinan  t».  (1  Schoales  &  L.  22), 
344«,  347,  370a,  385,  409,  448, 
462,  469,  496. 

-  ,  Harproves  P.  (15  Ga.  321),  191, 

391. 

-  ,  Lawrence   v.  (56  Me.  187),  272, 

279. 

-  ,  Mussell  v.  (Finch,  Prec.  Ch.  533), 

296,  518. 

-  v.  Tombs  (2  Amst.  420),  141,  354. 
Cookes  v.  Mascall  (2  Vern.  200),  443. 
Cool  v.  Peters  Co.  (87  Ind.  531),  245. 
Coombe,  Barry  v.  (1  Pet.  U.  S.  640), 

346,  357,  362,  371,  37  la,  385, 

619. 
Coombes  r.  Bristol  Railway  (3  Hurlst. 

&  N.  510),  329. 
Coombs,  Pain  v.  (1  De  G.  &  J.  46),  482. 

-  ,  Whiter.  (27  Md.  489),  266. 

-  v.  Wilkes  (L.  R.  3  Ch.  D.  1891,  77), 

3466,  372. 

Coon  p.  Rigden  (4  Col.  276),  357. 
Cooper  v.  Bill  (3  Hurlst.  &  C.  722),  319. 

-  v.  Chnmbers  (4  Dev.  N.  C.  Law, 

261),  193,212. 

-  v.  Doilrick  (22  Barb.  N.  Y.  516), 

408a. 


Cooper  v.  Elston  (7  T.  R.  14),  293. 

v.  Hornsby  (71  Ala.  62),  508. 

,  Jones  v.  (1  Cowp.  227),  163,  198. 

,  Morrill  v.  (65  Barb.  N.  Y.  512), 

478. 

v.  Smith  (15  East,  103),  371a. 

,  Spicer  v.  (1  Q.  B.  424),  380. 

,  Stevens  v.  (1  Johns.   N.  Y.  Ch. 

425),  430. 

v.  Worrnald  (27  Beav.  266),  224a. 

Cooth  v.  Jackson  (6  Ves.  12),  378,  454, 

460,  498,  515,  518. 
Cooty,  Adams  v.  (60  Vt.  395),  118. 
Cope  v.  Williams  (4  Ala.  362),  121. 
Copeland,  Morse  v.  (2  Gray,  Mass.  302), 

27a,  435. 

,  Reed  v.  (50  Conn.  472),  296a. 

v.  Watts  (1  Stark.  195),  56. 

Copen,  Tufts  v.  (37  W.  Va.  623),  31. 
Copper   Co.   v.   Spencer  (25  Cal.  18), 

230. 
Coppock,  Orrell  v.  (26  L.  J.  Ch.  269) 

164. 
Corbett  v.  Cochran  (3  Hill,  S.  C.  Law, 

41),  193. 

v.  Norcross  (35  N.  H.  99),  74a. 

Corbin  v.  McChesney  (20  III.  231),  187, 

193. 
Corcoran,  Wood  v.  (1  Allen,  Mass.  405), 

193. 

Cord,  Arnold  v.  (16  Ind.  177),  441,  445a. 
Cordell,  Self  v.  (45  Mo.  345),  2826,  289. 
Cordrey,  Cawthorne  v.  (13  C.  B.  N.  s. 

406),  291. 

Core,  White  /;.  (20  W.  Va.  272).  385. 
Corey,  Borst  v.  (16  Barb.  N.  Y.  136), 

223. 
Corf,  Peirce  v.  (L.  R.  9  Q.  B.  210), 

3466,  354,  369. 

Cork  v.  Baker  (Stra.  34),  215. 
Corkins  v.  Collins  (16  Mich.  478),  204. 
Corning,  Townsend  v.  (23  Wend.  N.  Y. 

435),  13. 
Cornish  r.  Stubbs  (L.  R.  6  C.  P.  334), 

30 

Cornwall,  Baker  v.  (4  Cal.  16),  391. 
Cortelyon  r.  Hoagland  (40  N.  J.  Eq.  1), 

161c. 
Cosby,  Letcher  v.  (2  A.  K.  Marsh.  Ky. 

206),  129. 

Coshow,  Howard  v.  (33  Mo.  118),  188. 
Coster,  Bates  ?;.   (1  Hun,  N.  Y.  400), 

302. 

,  Union  Bank  v.  (3  N.  Y.  203),  407. 

,  Union  Bank  v.  (1  Sandf.  N.  Y. 

563),  405. 

Cotten,  Miller  v.  (5  Ga.  341),  518. 
Cotterell,  Shardlnw  r.  (L.  R.  20  Ch.  D. 

90),  348,  385. 
Cotterill   i>.    Stevens   (10   Wise.   422), 

342a. 
Cottington  i>.  Fletcher  (2  Atk.  155),  498, 

615,  626. 


XXXVI 


TABLE   OF   CASES. 


Cottrell,   Fowler  Elevator  Co.  v.  (38 

Neb.  512),  348. 
Couch  v.  Meeker  (2  Conn.  302),  134, 

152. 

Coudert  v.  Colin  (118  N.  Y.  309),  38. 
Coughlin  v.  Knowles  (7  Met.  Mass.  57), 

122. 
County  of  San  Saba,  Williams  v.  (59 

Texas,  442),  89. 
Coupland  v.  Maynard  (12  East,  134), 

47. 
Coursen,  Hazewell  v.  (36  N.  Y.  Sup'r 

Ct.  459),  82. 
Courtenay,  Doe  v.  (11  Q.  B.  702),  43, 

49. 

Courtney,  Fox  v.  (Ill  Mo.  147),  385. 
Cousins,  Kingsley  v.  (47  Me.  91),  137. 
v.  Wall  (3  Jones,  N.  C.  Eq.  43), 

445«. 

Couturier  v.  Hastie  (8  Exch.  66),  213 
Covert,   Jackson   v.    (5   Wend.   N.   Y. 

139),  302. 
Cowan  v.  Adams  (1  Fairf.  Me.  374), 

138A. 
Coward  v.  Clanton  (79  Cal.  23),  260, 

2616. 
Cowdin  v.  Gottgetreu  (55  N.  Y.  650), 

199. 
Cowlier,   McCulloch  v.  (5  Watts  &  S. 

Pa.  427),  94,  95. 
Cowhick,   Work  v.  (81  111.  317),  136, 

348,  3546. 
Cowles  v.  Marble  (37  Mich.  158),  229. 

v.  Warner  (22  Minn.  449),  283. 

,  Wells  v.  (2  Conn.  567),  258. 

Cowper,  Cocker  v.  (1  Cromp.  M.  &  R. 

418),  24. 
Cox  v.  Bailey  (6  Man.  &  G.  193),  312. 

v.  Bent  (5  Bing.  185),  38. 

,  Carrnlls  v.  (15  Iowa,  455),  476, 

483. 

r.  Cox  (Peck,  Tenn.  443),  354a. 

,   McPherson   v.    (96   U.  S.  404), 

278a. 

v.  Peele  (2  Bro.  C.  C.  334),  267. 

v.  Weller  (6  Thomp.  &  C.  N.  Y. 

309),  167. 

Coyle  v.  Davis  (20  Wise.  564),  445a. 
Cozine  v.  Graham  (2.  Paige,  N.  Y.  177), 

511,  518,  533. 
Crabill  v.  Marsh  (38  0.  St.  331),  439, 

461,  463. 
Craddock,    Lake  v.  (3  P.  Wms.  158), 

260,  26  \e. 

,  Trammell  v.  (93  Ala.  450),  474. 

Crafts  17.  Beale  (11  C.  B.  172),  190. 
,  Lamb  v.  (12  Met.  Mass.  353),  142, 

305. 

Craig,  Aicardi  ».  (42  Ala.  311),  135. 
v.  Vanpelt    (3  J.  J.  Marsh.  Ky. 

489),  116. 
Craigmiles,  Grant  v.  (1  Bibb,  Ky.203), 

456. 


Cramer,  Greene  v.  (2  Con.  &  L.  54), 

216,  216a,  370a. 
,  Saunders  v.  (3  Dru.  &  W.  87), 

216. 
Cramtnond,  Phillips  v.  (2  Wash.  C.  C. 

441),  90. 

Crandall,  Dodge  v.  (30  N.  Y.  294),  289. 
Crane   v.   Bulloch  (R.   M.  Charl.   Ga. 

318),  191. 
,  Carville  v.   (5  Hill,  N.  Y.  484), 

161c.  174,  177. 
,  Croswell  v.  (7  Barb.  N.  Y.  191), 

34,  272. 

v.  Gough  (4  Md.  316),  116. 

v.  March  (4  Pick.  Mass.  131),  65. 

1-.  Powell  (139  N.  Y.  379),  608. 

r.  Wheeler  (48  Minn.  207),  165. 

Crangle,  Moorhouse  v.  (36  O.  St.  130), 

178. 

Cranston  v.  Smith  (6  R.  I.  231),  505. 
Crary,  Lansingburgh  Bank  v.  (1  Barb. 

N.  Y.  542),  236. 

Cravener  v.  Bowser  (4  Pa.  St.  259),  60. 
Cravens,  Vaughan  v.  (1  Head.  Tenn. 

108),  119. 
Crawford   v.  Edison   (45  O.  St.  239), 

199a. 

,  Fortescue  v.  (105  N.  C.  29),  385. 

v.  King  (54  Ind.  6),  204. 

,  Marcy  v.  (16  Conn.  549),  159. 

„.  Morrell  (8  Johns.  N.  Y.  253), 

147. 

v.  Wick  (18  Ohio  St.  190),  20. 

r.  Woods  (6  Bush,  Ky.  200),  135. 

Crawshay  v.  Maule  (1   Swanst.  495), 

259. 

Creasy,  Haycraft  v.  (2  East,  92),  181. 
Creel  v.  Bell  (2  J.  J.  Marsh.  Ky.  309), 

212 

v.  Kirk'ham  (47  111.  344),  20. 

Creighs  Administrator  v.  Boggs  (19  W. 

Va.  240),  515. 
Creighton  v.  Sanders  (89  111.  543),  38, 

451. 
Crenshaw,  Harris  v.  (3  Rand.  Va.  14), 

467. 

Cresswell  v.  McCaig  (11  Neb.  222),  135. 
Creswell,    Green    v.   (4    Jurist,   169), 

161a,  1616. 

Crew,  White  v.  (16  Ga.  416),  471. 
Creyon,    Leland  r.   (1    McCord,    S.  C. 

Law,  100),  197,  198. 
Crick,  Ferguson  v.  (23  S.  W.  Rep.  Ky. 

668),  75. 

Crim  v.  Fitch  (53  Ind.  214),  1666. ' 
Cripps  v.  Hartnoll  (2  Best  &  S.  697), 

1616. 

v.  Jee  (4  Bro.  Ch.  472),  111. 

Crist,  Worden  v.  (106  111.  326),  267. 
Critchfield,  Weyand  v.  (3  Grant,  Pa. 

113),  199a. 
Crocker,  Breckenridge  v.  (78  Cal.  529), 

352,  374,  375a. 


TABLE   OF  CASES. 


XXXV 11 


Crocker  v.  Higgins  (7  Conn.  342),  441. 
Crockett  v.  Green  (3  Del.  Ch.  466),  385. 

t>.  Scribner  (64  Me.  447),  310. 

Crockford,  Kniglit  v.  (1  Esp.  188),  357, 

358 
Croffut,  Van  Vulkenburgli  o.  (15  Hun, 

N.  Y.  147),  122. 
Croft  v.  Bunster  (1J  Wise.  503),  65. 

,  Roberts  v.  (2  De  G.  &  J.  1),  02a. 

,  Thomas  v.  (2  Kick.  S.  C.  Law, 

113),  190. 
Crofts,  Parton  v.  (16  C.  B.  N.  8.  11), 

344,  351,  3(39. 
Cromwell,  MacCubbin  v.  (7  Gill  &  J. 

Md.  157),  97,  98,  100,  102. 
Crook  v.  Brooking  (2  Vern.  50),  98. 
,  Billion  v.  (11  Bush,  Ky.  321),  26, 

31a. 

Crooks  v.  Tally  (50  Cal.  254),  191. 
Crookshank  v.  Burrell  (18  Johns.  N.  Y. 

68),  301,  311. 

Crop  v.  Norton  (9  Mod.  233),  85,  88. 
Crosby  v.  Brownson  (2  Day,  Conn.  425), 

65. 

,  Bryant  v.  (40  Me.  9),  240. 

,  Backhouse  v.  (2  Eq.  Cas.  Abr.  32), 

432. 

v.  Jeroloman  (37  Ind.  264),  1666. 

,  Strong  v.  (21  Conn.  398),  43,  46. 

v.  Wadsworth  (6  East,  602),  18, 

244. 
Cross  v.  Everts  (28  Tex.  523),  505. 

v.  O'Donnell  (44  N.  Y.  661),  316c. 

v.  Richardson  (30  Vt.  641),  204, 

212. 

,  Rmlisill  v.  (54  Ark.  619),  2346. 

Crossland,  Banks  v.  (L.  R.  10  Q.  B.  97), 

137a. 
Crosswell  v.  Crane  (7  Barb.  N.  Y.  191), 

34,  272. 

,  Myers  v.  (45  O.  St.  643),  475. 

Crowder  v.  Keys  (91  Ga.  180),  167. 
Crowell,    Beers  v.  (Dudley,    Ga,  29), 

298. 
,  Doughaday  v.  (11  N.  J.  Eq.  201), 

14. 
Crowtker,   Tawney  v.  (3   Bro.    C.   C. 

318),  3466. 
Croyston  v.  Banes  (1  Eq.  Cas.  Abr.  19), 

498. 

Crull  v.  Dodson  (Sel.  Cas,  Ck.  41),  226. 
Crutclier  v.  Muir  (90  Ky.  142),  263. 
Crutchfield  v.  Donatkon  (49  Tex.  691), 

1226. 

Cuff  v.  Penn  (1  Maule  &  S.  21),  411. 
Culligan    v.  Wingerter    (67  Mo.  241), 

134. 
Cullison,  Raffensberger  v.  (28  Pa.  St. 

426),  436. 
Culver,  Beers   v.  (1  Hill,  N.  Y.  689), 

604. 

,  Hess  v.  (77  Mich.  698),  184. 

,  Moss  v.  (64  Pa.  St.  414),  76. 


Cumberland  R.  R.  v.  McLanakan  (59 

Pa.  St.  53),  31. 
Gumming  v.  Roebuck  (Holt,  N.  P.  172), 

351. 
Cummings  v.  Arnold  (3  Met.  Mass.  486), 

411,  424,  428.  436. 

v.  Dennett  (26  Me.  401),  308. 

v.  Gill  (6  Ala.  662),  4«7. 

,  Grafton  v.  (7  Reporter,  645),  350, 

373,  375,  375«. 

,  Kurtz  v.  (24  Pa.  St.  35),  226. 

(Juuimins,  Birckhead   v.  (33  N.  J.  L. 

44),  32a. 
v.  Nutt  (Wrigkt,  Ohio,  713),  74, 

487. 

Cunliffe  ».  Harrison  (6  Exck.  903),  333. 
Cunningham   v.   Holton   (55   Me.  33), 

38. 
,  Messmore  v.  (78  Mick.  623),  138/, 

371. 
,  Mowbray  v.  (I  Cowp.  227,  note), 

163. 
.Patterson  v.   (12  Me.  606),  152, 

451. 

,  Rickards  v.  (10  Neb.  417),  135. 

o.  Williams    (43  Mo.  App.  629), 

354a. 
Cunynghame,  Rose  v.  (11   Ves.  650), 

352a,  354. 
Curd,  Kay  v.  (6  B.  Mon.  Ky.  100),  376, 

385,  493,  511. 
Curl,  Tkwaites  v.  (6  B.  Mon.  Ky.  472), 

198. 

Curie  v.  Eddy  (24  Mo.  117),  267. 
Curling  v.  Flight  (5  Hare,  242),  258. 
Curnutt  v.  Roberts  (11  B.  Mon.  Ky.  42), 

121. 
Currie  v.  Anderson  (2  El.  &  E.  592), 

316/. 
Currier  v.  Barker  (2  Gray,  Mass.  226), 

39. 

,  Hcwett  v.  (63  Wise.  286),  200a. 

v.  Howard  (14  Gray,  Mass.  511), 

82. 
Curtis  v.  Abbe  (39  Mich.  441),  266. 

r.  Blair  (26  Miss.  309),  13,  370a. 

v.   Brown    (5    Cush.    Mass.  488), 

193,  197,  204,  214c,  214rf. 

,  Michael  v.  (60  Conn.  363),  234. 

y.  Noonan  (10  Allen,  Mass.  406), 

27a. 
v.  Pugk  (10  Q.  B.  Ill),  316A,  326, 

333. 

-,  Hyde  v.  (8  Dowl.  &  R.  62),  400. 
—  r.  Sage  (35  III.  22),  283,  289. 

,  Stiles  i\  (4  Day,  Conn.  328),  74a. 

Curtiss,  Brown  v.  (2  N.  Y.  22.')),  195. 
,  Plimpton  v.  (15  Wend.  N.  Y.  336), 

278. 

Curyea,  Burton  v.  (40  III.  320),  319a. 
Cusack  r.  Robinson  (1   Best  &  S.  399), 

31tta,    816c,   3186,   320,   321a, 

821c,  333,  338. 


XXXV111 


TABLE   OF  CASES. 


Gushing  v.  Breed  (14  Allen,  Mass.  376), 

319a. 
Cushney,  Armstrong  v.  (43  Barb.  N.  Y. 

340),  298 

Cutler  v.  Babcock  (81  Wise.  191),  96a. 
v.  Hinton  (6  Rand.  Va.  509),  197, 

198. 

v.  Pope  (13  Me.  377),  255a. 

v.  Tuttle  (19  N.  J.  Eq.  549),  86,  91. 

Cutsinger  >:  Ballard  (115  Ind.  93),  454, 

493: 

Cutter,  Boardman  v.  (128  Mass.  388), 

293a,  296a,  297a. 

v.  Emery  (37  N.  H.  567),  161c. 

Cuttle,   Johnson   v.   (105   Mass.   447), 

3276. 
Cuyler,  Baker  v.  (12  Barb.  N.  Y.  667), 

326. 


D. 

D.  and  N.  R.  R.,  R.  and  D.  R.  R.  v.  (104 

N.  C.  658),  26. 

Dacosta  v.  Davis  (23  N.  J.  L.  319),  136. 
Daggett,  Burns  v.  (141  Mass.  368),  467. 
Daggy,  Ash  v.  (6  Ind.  279),  483,  490. 
D'Aguilar  v.  Drinkwater  (2  Ves.  &  B. 

234),  218. 
Dail,  Wingate   v.  (2  Harr.   &  J.  Md. 

276),  493. 
Dake,  Young  v.  (5  N.  Y.  463),  34,  37, 

•230,  272. 
Dakota  Co.,  Winslow  v.  (32  Minn.  237), 

198. 

Dale,  Follmer  v.  (9  Pa.  St.  83),  464. 
v.  Hamilton  (5  Hare,  369),  85,  90, 

96,  260,  261c,  261e,  455. 
Dall  v.  Brown  (5  Cush.  Mass.  289),  72. 
Dallas,  Smith  v.  (35  Ind.  255),  384. 
Daly,  Purcell  v.  (19  Abb.  N.  C.  N.  Y. 

301),  24. 
Dalzell  v.  Dueber  Mfg.  Co.  (149  U.  S. 

320),  298. 
Damon  v.  Osborne  (1  Pick.  Mass.  476), 

337. 

Dana  v.  Hancock  (30  Vt.  616),  411. 
,  Whittier  v.  (10  Allen,  Mass.  326), 

411,  424. 
Danforth  v.  Lanev  (28  Ala.  274),  467, 

477. 

,  Spangler  v.  (65  111.  152),  354a. 

v.  Walker  (40  Vt.  257),  326o. 

Daniel  v.  Mercer  (63  Ga.  442),  197. 
v.  Robinson  (66  Mich.  296),  183, 

1846. 
Daniels  v.  Bailey  (43  Wise.  666),  229, 

257. 

,  Ellison  r.  (11  N.  H.  274),  65. 

Dannah,  Wright  o.  (2  Camp.  203),  367, 

370a. 

Dansey,  Adams  r.  (6  Bing.  506),  159. 
Dant  v.  Head  (90  Ky.  255),  289. 


Danzeisen's   Appeal   (73  Pa.  St.  65), 

441a. 
Darbyshire,  Bunting   v.  (75  111.  408), 

193. 
Darling  v.  Butler  (45  Fed.  Rep.  332), 

229 

,  People'  v.  (47  N.  Y.  666),  38. 

,  Welch  v.  (59  Vt.  136),  118. 

Darlington  v.  McCunn  (2  E.  D.  Smith, 

N.  Y.  411),  197. 
Darnall,    Buckmyr   v.   (2  Ld.   Raym. 

1085),  166,  157,  196,  197. 
Darragh,  Sale  v.  (2  Hilton,  N.  Y.  184), 

337,  385. 

Darst  v.  Bates  (95  111.  493),  165. 
Daugherty,  Lyons  v.  (26  S.  W.  Rep. 

Tex.  146),  204. 
Davenport  v.  Gentry  (9  B.  Mon.  Kv. 

427),  118. 

v.  Mason  (15  Mass.  85),  488. 

Davey  v.  Shannon  (4  Exch.  Div.  81), 

277,  281. 
Davidson,  Chandler  v.  (6  Blackf.  Ind. 

367),  212. 

,  Eddy  v.  (42  Vt.  56),  197. 

v.  Graves  (Riley,  S.  C.  Eq.  219), 

223. 
Davies  v.  Marshall  (10  C.  B.  N.  s.  97), 

27a. 

v.  Otty  (33  Beav.  640),  507o. 

,  Owen  v.  (1  Ves.  Sr.  82),  461. 

,  Selkrig  v.  (2  Dow,  P.  C.  230),  259. 

Davis,  Anderson  v.  (9  Vt.  136),  193. 

,  Austin  v.  (128  Ind.  472),  463. 

,  Best  i'.  (44  111.  App.  624),  135c. 

,  Cade  v.  (96  N.  C.  139),  118. 

,  Coyle  v.  (20  Wise.  564),  445a. 

,  Dacosta  v.  (23  N.  J.  L.  319),  136. 

,  Durant  v.  (10  Tenn.  522),  94. 

?;.  Eastman   (1  Allen,  Mass.  422), 

316,  326,  334«. 
,  Entwistle  v.  (L.  R.  4  Eq.  272), 

258 

,  Farnam  v.  (32  N.  H.  302),  119. 

v.  Farr  (26  Vt.  592),  118. 

,  Jones  v.  (16  Ves.  262),  518. 

v.  Judge  (46  Vt.  655),  75. 

,  League  v.  (53  Tex.  9),  508. 

,  Leonard  v.  (1  Black,  U.  S.  476), 

319. 

,  Marsh  v.  (33  Kans.  326),  259. 

,  Martin    v.    (80  Wise.    371),    187, 

2146. 

v.  Moore  (13  Me.  424),  337. 

v.  Moore  (9  Rich.  S.  C.  Law,  215), 

451,  474. 
—  v.  Parish  (Litt.  Ky.  Sel.  Cas.  153), 

267. 
v.  Patrick  (141   U.  S.  479),  214, 

214o. 

v.  Pollock  (36  S.  C.  544),  385. 

v.  Robertson    (1  Mill,  S.  C.   71), 

346a. 


TABLE   OF   CASES. 


XXXIX 


Davis,  Ryan  v.  (5  Mont.  505),  385. 

,  Seymour  r.  (2  Sandf.  N.  Y.  239), 

303,  306,  451. 
v.  Shields  (26  Wend.  N.  Y.  341), 

351,  356,  369,  382,  384. 

v.  Thompson  (13  Me.  209),  38. 

v.  Tift  (70  Ga.  62),  157. 

r.  Tingle  (8  B.  Mon.  Ky.  539),  77. 

v.  Townsend  (10  Barb.  N.  Y.  333), 

26,  75,  465. 

,  Wood  v.  (82  111.  311),  354a,  3546. 

—  Sewing  Machine  Co.,  Chicago  At- 
tachment Co.  v.  (142  111.  171), 

38,46. 
Davison  v.  Davison  (13  N.  J.  Eq.  246), 

463. 

,  Lord  v.  (3  Allen,  Mass.  131),  193. 

,  Mellon*?.  (123  Pa.  St.  298),  348, 

385. 

v.  Stanley  (4  Burr.  2210),  48,  49. 

Daw  v.  Terrell  (33  Beav.  218),  62. 
Dawber,   Stead  v.   (10  Ad.  &  E.  67), 

414,  417. 

Dawes  v.  Peck  (8  T.  R.  330),  327a. 
Dawson,  Colbourn  v.  (10  C.  B.  765), 

405. 

v.  Ellis  (1  Jac.  &  W.  524),  130. 

,  Frame  v.  (14  Ves.  386),  452,  454, 

456,  480. 

,  Toomer  v.  (Cheves,  S.  C.  68),  351. 

,  Whaley  v.  (2  Schoales  &  L.  367), 

68. 
Day,  Att'y-Gen'l  v.  (1  Ves.  Sr.  218),  78, 

265,  498,  499. 
,  Chase  v.  (17  Johns.  N.  Y.  114), 

197,  199. 

v.  Elmore  (4  Wise.  190),  408a. 

,  Hazard  v.  (14  Allen,  Mass.  487), 

352,  37 la. 

v.  N.  Y.  Central  R.  R.  (22  Hun, 

N.  Y.  416),  118. 
v.  New  York  Central  R.  R.   (51 

N.  Y.  583),  122a. 

,  Putney  v.  (6  N.  H.  430),  245,  256. 

v.  Roth  (18  N.  Y.  448),  98. 

t>.  Wilson  (83  Ind.  463),  122. 

Dayton  v.  Williams  (2  Doug.  Mich.  31), 

605. 
Deadman,  Ellis  v.  (4  Bibb,  Ky.  466), 

346,  354,  376,  382. 

Deal  v.  Maxwell  (51  N.  Y.  652),  302. 
Dean  v.  Cassiday  (88  Ky.  672),  471. 

v.  Dean  (6  Conn.  285),  94a. 

,  Hammond   v.    (8   Baxter,  Tenn. 

193),  38. 
,  Morton  v.  (13  Met.  Mass.  385), 

348,  369,  382. 

v.  Tallman  (105  Mass.  443),  199. 

Deane  v.  Izard  (1  Vern.  159),  466,  488. 

,  Seago  v.  (4Bing.  459),  117. 

Dearborn,  Campbell  v.  (109  Mass.  130), 

441a. 
,  Keyes  v.  (12  N.  H.  52),  36. 


Dearborn  v.  Parks  (5  Greenl.  Me.  81), 

1666. 

Dearlove,  Kozel  v.  (144  111.  23),  370a 
Deaton   v.    Tennessee   Coal    Co.    (12 

Heisk.  Tenn.  650),  282. 
De  Bardelaben  v.  Stoudenmire  (82  Ala. 

674),  230. 

De  Beil.     See  De  Biel. 
De  Biel,  Hammersly  v.  (12  Clark  &  F. 

45),  224,  459,  459a,  460a. 
v.  Thompson  (3  Beav.  469),  3466, 

440,  459a. 
De  Bussy,  Bogart  v.  (6  Johns.  N.  Y. 

94),  13. 

Decker,  Collins  v.  (70  Me.  23),  259. 
Dedrick,  Cooper  v.   (22   Barb.   N.  Y. 

616),  408a. 

Dee  v.  Downs  (57  Iowa,  689),  174. 
Deering,  Frost  v.  (21  Me.  150),  126. 

,  Robinson  v.  (66  Me.  357).  40. 

Deforest,  Drakely  v.  (3  Conn.  272),  187. 
Deg  v.  Deg  (2  P.  Wms.  412),  91,  99. 
De  Groff,  Wright  v.  (14  Mich.  104), 

230. 
Dehority  v.  Paxson  (97  Ind.  253),  320, 

337. 

Deisher  v.  Stein  (34  Kans.  39),  119. 
Delano  v.  Montague  (4  Cusli.  Mass.  42), 

33,  37-,  230,  272. 
Delaplaine,  Bailey  v.  (1  Sandf.  N.  Y. 

6),  66. 
De  la  Vergne,  Burr  v.  (102  N.  Y.  415), 

298. 

Delphy,  Thomas  v.  (33  Md.  373),  212. 
De  Mallagh,  De  Mallagh   v.  (77  Cal. 

126),  96. 
Demartini,  Tapia  v.  (77  Cal.  383),  65, 

82. 
De  Mattos,  Dibble  v.  (8  Wash.  642), 

212. 

De  Medina  v.  Poison  (Holt,  47),  39,  40. 
Demeritt  v.  Bickford  (68  N.  H.  623), 

161c. 
De  Moss   v.  Robinson  (46  Mich.  62), 

116. 
Dempewolf,  Billingsley  v.  (11  Ind.  414), 

199. 

Den  d.     See  name  of  real  party. 
Dening,  Taylor  v.  (3  Nev.  &  P.  228), 

355a. 
Denison,  Grace  v.  (114  Mass.  16),  376, 

886. 
Deniston  v.  Little  (2  Schoales  &  L.  11, 

note),  601. 
Dennett,  Cummings  v.   (26  Me.  401), 

308. 

Dennis  v.  McCagg  (32  111.  429),  96. 
Dennison,  Stone  r.  (13  Pick.  Mass.  1), 

116. 
Denniston,  Bounie  v.  (41   Mich.  292), 

199. 
Denny  v.  Williams  (5  Allen,  Mass.  1), 

136,  321. 


xl 


TABLE  OF  CASES. 


Dent,  Brooks  v.  (1  Md.  Ch.  Dec.  523), 

391. 
v.  McGrath    (3  Bush,    Ky.  176), 

181 

,  Wilson  v  (3  Sim.  385),  97. 

Depeyster  v.  Gould  (2  Green,  N.  J.  Ch. 

474),  87. 
Derby,  Griffin  v,  (5  Greenl.  Me.  476), 

157. 

v.  Phelps  (2  N.  H.  515),  272. 

Derrick  v.  Brown  (66  Ala.  112),  275. 
Derrison,    Shippey    v.  (5     Esp.    190), 

354, 
De  Ruyter,  Rindskopf  v.  (39  Mich.  1), 

3276. 
Desha  Lumber  Co.,  Sweet  v.  (56  Ark. 

629),  276. 

Deshon  v.  Wood  (148  Mass.  132),  131. 
Desjardins,   Speyer   v.  (144  111.    641), 

259,  262,  509. 

Desloge  v.  Pearce  (38  Mo.  588),  28. 
Despard,  King  v.  (5  Wend.  N.  Y.  277), 

204,  212. 

Deutseh  v.  Bond  (46  Md.  479),  391. 
Devaux  v.  Steinkeller  (6  Bing.  N.  R. 

84),  Appendix,  p.  583. 
Devaynes,  Townsend  v.  (1  Mont.  Part- 
nership, App.  97),  259. 
Devenish  v.  Baines  (Finch,  Prec    Ch. 

3),  94. 

Devereux,  Hyman  ».  (63  N.  C.  624),  65. 
,  Lilly  white  v.  (15  Mees.  &  W.  285), 

3196,  321. 

D'Evers,  Strehl  v.  (66  111.  77),  272. 
Devine,  Welton  v.  (20  Barb.  N.  Y.  9), 

92. 
Devinney  v,  Reynolds  (1  Watts  &  S. 

Pa.  332),  13. 
Devlin,  Allen  v.  (6  Bosw.  N.  Y.  1),  34, 

46,  47. 

,  Smith  v.  (23  N.  Y.  363),  34,  46. 

Devoll,  Beiler  v.  (40  Mo.  App.  251), 

272. 
Dew,  Dowell  v.  (1  Younge  &  C.  C.  C. 

345),  480. 
Dewey   w.  Bordwell    (9  Wend.  N.  Y. 

65),  75. 
,  Boston  Duck  Co.  v.  (6  Gray,  Mass. 

446),  508. 

v.  Life  (60  Iowa,  361),  515. 

Dewhurst,   Emmet    v.  (3  McN.    &  G. 

587),  179,  422. 
Dewing,  Howe  v.  (2  Gray,  Mass.  476), 

354. 
D'Wolf,  Quintard  v.  (34  Barb.  N.  Y. 

97),  193. 
».  Rabaud  (1  Pet.  U.  S.  476),  175, 

191,  403,  407,  172a. 

,  Rabaud  v.  (1  Paine,  C.  C.  580), 

191. 
Dexter  v.  Blanchard  (11  Allen,  Mass. 

365),  156,  204. 
v.  Ohlander  (89  Ala.  262),  505. 


De  Young,  Clymer  v.  (54  Pa.  St.  118). 

187,  2146. 

Dibble  v.  De  Mattos  (8  Wash.  542),  212. 
Dick  v.  Mawry  (9  Smedes  &  M.  Miss. 

448),  65. 

,  Milligan  v.  (107  Pa.  St.  259),  122. 

Dicken,  Peate  v.  (1  Croinp.  M.  &.  It. 

422),  405. 
Dickenson  v.  Adams  (4  Ves.  720,  note), 

461. 
Dickerson,  Chester  v.  (54  N.  Y.  1),  2616, 

262. 

v.  Colgrave  (100  U.  S.  583),  467. 

v.  Lilwal  (1  Stark.  128),  351. 

Dickinson,    Chanter  v.   (5  Man.  &  G. 

253),  298. 

i:  Dickinson  (29  Conn.  600),  293a. 

,  Thomas  v.  (14  Barb.  N.  Y.  90), 

124,  451. 

v.  Wright  (56  Mich.  42),  12. 

Dickson  v.  Frisbee  (52  Ala.  165),  291. 

v.  Lambert  (98  Ind.  487),  384. 

Dieffenbach,  Shitz  v.  (3  Pa.  St.  233), 

64. 

Dighton,  Lane  v.  (Amb.  409),  90. 
Dillaby  v.  Wilcox  (60  Conn.  71),  203, 

214e. 

Dille,  Woods  v.  (11  Ohio,  455),  498. 
Dillingham,  Parker  v.  (129  Ind.  542), 

204. 
Dillman,  Baker  v.  (12  Abb.  N.  Y.  Pr. 

313),  161c. 
Dillon  v.  Crook  (tl  Bush,  Kv.221),  26, 

31a. 

,  Mohr  v.  (80  Ga.  572),  380. 

Dilts  v.  Parke   (1  South.  N.  J.  219), 

187. 

Dimond,  Taft  v.  (16  R.  I.  584),  98. 
Dinkel  v.  Gundelfinger  (35  Mo.   172), 

518. 
Dinsmore,  Hilton  v.  (21  Me.  410),  187, 

212. 

District  of  Columbia  v.  Johnson  (1  Mc- 
Kay 51),  346. 

Dix  v.  Marcy  (116  Mass.  416),  119. 
Dixon  v.  Broomfield  (2  Chitty,  205), 

370 

p.  Buell  (21  111.  203),  42. 

,  Doyle  v.  (97  Mass.  208),  2826. 

v.  Duke  (85  Ind.  434),  135. 

v.  Frazee  (1  E.  D.  Smith,  N.  Y. 

32),  197,  198. 

,  Loving  v.  (56  Tex.  75),  164. 

,  Lucas  v.  (L.  R.  22  Q.  B.  D  357), 

352a. 
v.  Mucklestone  (L.  R.  8  Ch.  155), 

v.  Olmius  (1  Cox,  414),  442. 

,  Sykes  v.  (9  Ad.  &  E.  697),  401. 

,  Thompson  v.  (3  Bro.  C.  C.  199), 

259. 
,  Thornton  v.   (3  Bro.  C.  C.  199), 

259. 


TABLE   OF  CASES. 


Xli 


Doak,  McClure   r.  (6  Baxter,   Tenn. 

364),  84. 
Dobell  v.  Hutcliinson  (3  Ad.  &  E.  355), 

3466,  354. 
Dobson  v.  Collis  (1  Hurlst.  &  N.  81), 

282. 

Dobyns  v.  Rice  (22  Mo.  App.  448),  1666. 
Dock  v.  Boyd  (93  Pa.  St.  92),  187. 
«;.  Hart  (7  Watts  &  S.  Pa.  172), 

142,  150. 

Docter  v.  Hellberp  (65  Wise.  415),  365. 
Dodd  v.  Ackloin  (6  Man.  &  G.  672),  50, 

55. 
,  Wakeman  v.  (12  N.  J.  Eq.  567), 

4466. 
Dodge  17.  Crandall  (30  N.  Y.  294),  289. 

v.  Dodge  (33  N.  H.  487),  60. 

,  Gorhain  r.  (122  111.  528),  465. 

,  Johnson  i>.  17  111.  4:33),  370a. 

v.  MuClintock  (47  N.  H.  383),  29. 

,  Outwater  v.  (ti  Wend.  N.  Y.  397), 

327. 
,  Rawdon  v.  (40  Mich.  697),  229. 

i-.  Wellman  (1   Abb    N.  Y.  App. 

Dec.  512),  96«,  441. 
Dodgson,  Johnson  v.   (2  Mees.  &  W. 

653),  349,  354,  357,  358,  611, 

518. 
Dodsley  v.  Varley  (12  Ad.  &  E.  634), 

817o. 

Dodson,  Crull  r.  (Sel.  Cas.  Ch.  41),  296. 
Doe.     See  also  name  of  real  party. 

17.  Bridges  ( 1  Barn.  &  Ad.  847),  49. 

v.  Conrtenay  (11  Q.  B.  702),  43, 

49. 

v.  Forwood  (3  Q.  B.  627),  43. 

r.  Mihvard  (3  Mees.  &  W.  328), 

47. 

r.  Pedgriph  (4  Carr.  &  P.  312), 

354. 

v.  Poole  (11  Q.  B.  716),  49. 

r.  Ridout  (5  Taunt.  519),  45. 

v.  Smyth  («  Barn.  &  C.  112),  267. 

r.  Stanion  (1  Mees.  &  W.  695),  50. 

r.  Thomas  (!)  Barn.  &  C.  288),  844. 

v.  Walker  (5  Barn.  &  C.  Ill),  52. 

Doggett,  Cook  /-.  (2  Allen,  Mass.  439), 

1 19,  122. 

r.  Patterson  (18  Tex.  158),  268. 

Doherty  e.  Hill  (142  Mass.  465),  345a, 

3.30,  3546,  385. 
Dohlonde,  Bovkin  v.  (1  Sel.  Cas.  Ala. 

502),  "197. 
Doidge  17.  Bowers  (2  Mees.  &  W.  365), 

38. 
Dolan,  Pennsylvania  Co.  v.  (6  Ind.  App. 

Ct.  109),  276. 

Dole,  Chenery  r.  (39  Me.  162),  71. 
,   Hickey  v.  (29   All.   Rep.  N.  H. 

792),  3466. 

,  Lawrence  r.  (11  Vt.  549),  435. 

Donahoe,  Fleming  v.  (5  Del.  Ch.  255), 

81. 


Donaldson    v.   Newman    (9   Mo.   App. 

235),  608. 

v.  Smith  (1  Ashm.  Pa.  197).  36. 

i7.  Waters  (30  Ala.  175),  122. 

Donathon,  Crutchfield  v.  (49  Tex.  691), 

1226. 
Donellan  v.  Read  (3  Barn.  &.  Ad.  899), 

20,  48,  50,  287,  289. 
Donnelly,    Bates    v,    (57    Mich.    521), 

199a. 
Donohoe,  Farrington  v.  (I.  R.  1  C.  L. 

679),  282a. 
Donovan  v.  Richmond  (61  Mich.  467), 

279,  291«. 
v.  Willson  (26  Barb.  N.  Y.  138), 

302. 
Doolittle  v.  Naylor  (2  Bosw.  N.  Y.206), 

202. 
Doremus,  Berry  v.  (30  N.  J.  L.  399), 

1666,  276,  289. 
Dorman  v.  Bigelow  (1  Fla.  281),  391, 

406. 
Dormer,  Roots  v.  (4  Barn.  &  Ad.  77), 

314. 

Dorrney,  Kincaid  v.  (47  Mo.  337),  75. 
Dorr,  Shute  v.  (5  Wend.  N.  Y.  204), 

118,  124,  282a. 

Dorris  v.  Sullivan  (90  Ala.  279),  24. 
Dorsey   v.   Clarke  (4   Harr.  &  J.  Md. 

551),  91,  93,  96. 

r.  Pike  (50  Hun,  N.  Y.  534),  3196. 

,  Warfield  v.  (39  Md.  299),  264. 

Dorwin  17.  Smith  (35  Vt.  69),  159. 
Dosch,  Washburn  v.  (68  Wise.  436), 

289. 

Doss  t7.  Peterson  (82  Ala.  253),  193. 
Doten,  Terney  r.   (70  Cal.  399),  316a, 

323. 
Doty,  Champion  v.  (31  Wise.  190),  198. 

w.  Smith  (62  Hun,  N.  Y.  598),  298. 

v.  Wilder  (15  111.  407),  369. 

Dougan  v.  Blocher  (24  Pa.  St.  88),  485. 
Doughaday  v.  Crowell  (11  N.  J.  Eq. 

201),  14. 
Dougherty,  Barnet  v.  (32  Pa.  St.  371), 

95. 

Catlett  ».  (21  111.  App   116),  267. 

v.  Catlett  (129  111.  431),  229,  451. 

,  Flynn  r.  (91  Cal.  609),  305,  308. 

r.  Hartel  (91  Mo.  161),  491a. 

,  Little  v.  (11  Col.  103),  352. 

,  Mighell  «.-.  (86  Iowa.  480),  305. 

r.  Rosenberg  (62  Cal.  32),  278n. 

r.  Stone  (66  Hun,  N.  Y.  498),  197. 

Douglas,  Hammon  v.  (50  Mo.  434),  38. 

v.  Snow  (77  Me.  91),  508. 

v.  Vincent  (2  Vern.  202),  220,  443. 

Douglass  17.  Howland  (24  Wend.  N.  Y. 

35),  405,  406. 
t7.  Jones  (3  E.  D.  Smith,  N.  Y. 

661),  167. 
v.  Spears  (2  Nott  &  McC.  S.  C. 

Law,  207),  365. 


xlii 


TABLE  OF  CASES. 


Douglass,  Wright  v.  (7  N.  Y.  564),  97, 

98,  99,  104. 

Dow,  Flagg  v.  (99  Mass.  18),  51. 
,  Hetfield  v.  (27  N.  J.  L.  440),  197, 

199. 

v.  Jewell  (18  N.  H.  340),  73. 

»;.  Jewell  (21  N.  H.  488),  82. 

,  Jones  v.  (142  Mass.  130),  373. 

v.  Way  (64  Barb.  N.  Y.  255),  1176. 

v.  Worthen  (37  Vt.  108),  342a. 

Dowding,  Mooreeroft  v.  (2  P.    Wms. 

314),  110. 
Dowdle  v.  Camp  (12  Johns.  N.  Y.  451), 

122. 
,  Ingrain  r.  (8   Ired.  N.  C.  Law, 

455),  264. 

,  McGill  v.  (33  Ark.  311),  164. 

Dowell  v.  Dew  (1  Younge  &  C.  C.  C. 

345),  480, 
Dowling  v.  McKenney  (124  Mass.  478), 

119,  144,  271,  293. 
Downer    v.    Chesebrough    (36    Conn. 

39),  136. 

,  Townsend  v.  (32  Vt.  183),  72. 

Downey  v.  Hinchman    (25  Ind.  453), 

156. 
v.  Hotchkiss  (2  Day,  Conn.  225), 

451. 
Downing,  Plevins  v.  (1  C.  P.  Div.  220), 

426«. 
Downs,  Dee  v.  (57  Iowa,  589),  174. 

v.  Ross  (23  Wend.  N.  Y.  270),  302. 

Dows  v.  Swett  (120  Mass.  322),  165. 

v.  Swett  (134  Mass.  140),  165. 

Dox,  Ryan  v.  (25  Barb.  N.  Y.  440),  94. 

,  Ryan  v.  (34  N.  Y.  307),  94,  96a. 

Doyle  v.  Dixon  (97  Mass.  208),  2826. 

v.  White  (26  Me.  341),  195. 

Dozer,  Wolf  v.  (22  Kans.  436),  272. 
Drake,  Bartlett  t;.  (100  Mass.  174),  146, 

17. 

,  James  v.  (39  Tex.  143),  228. 

,  Miller  v.  (1  Caines,  N.  Y.  45),  605. 

v.  Newton  (23  N.  J.  L.  Ill),  38. 

v.  Seaman  (97  N.  Y.  230),  384. 

,  Taylor  v.  (4  Strobh.  S.  C.  Law, 

431),  174,  197,  212. 

v.  Wells   (11  Allen,  Mass.  141), 

255. 
Drakeford,  Townend  v.  (1  Carr.  &  K. 

20),  351,  369. 

Drakely  v.  Deforest  (3  Conn.  272),  187. 
Draper,  Abbott  v.  (4  Denio,  N.  Y.  51), 

121,  122,451. 

v.  Pattina  (2  Speer,  S.  C.  Law, 

292),  352. 

v.  Snow  (20  N.  Y.  331),  406. 

Draughan  v.  Bunting  (9   Ired.   N.    C. 

10),  161c,  193. 
Dravo,  Milliken  v.   (67  Pa.   St.  230), 

487. 
Dresser  v.  Dresser  (35  Barb.  N.  Y.  573), 

276,  279. 


Dresser,   Highland  v.  (35  Minn.  345) 

189. 

,Kemblev.  (1  Met.  Mass.  271),  110. 

Dressier,  Fitzgerald  v.  (5  C.  B.  N.  8. 

885),  202. 
,  Fitzgerald  v.  (7  C.  B.  N.  s.  374), 

200a,  212. 
Drew,  Gleason  v.   (9  Greenl.  Me.  79), 

294. 

v.  Peer  (93  Pa.  St.  234),  24. 

,  Raynor  v.  (72  Cal.  307),  35,  278«. 

Drinker,  Stern  v.  (2  E.  D.  Smith,  N.  Y. 

401),  204. 
Drinkwater,  D'Aguilar  v.  (2  Ves.  &  B. 

234),  218. 
Drum,  Spooner  v.  (7  Ind.  81),  204. 

r.  Stevens  (94  Ind.  181),  485. 

Drumm,  Emley  v.  (36  Pa.  St.  123),  264. 
Drummond,  Boy  dell  v.  (11  East,  142), 

281a,  285,  286,  348. 
v.  Burrell  (13  Wend.  N.  Y.  307), 

283. 

,  Green  v.  (3  Md.  71),  84,  86. 

Drury  v.   Conner    (6  Harr.  &  J.  Md. 

288)  465. 
v.  Young  (58  Md.  546),  344,  354, 

356. 
Dry  butter  v.  Bartholomew  (2  P.  Wms. 

127),  258. 
Dubois  v.  Kelley  (10  Barb.  N.  Y.  496), 

27. 
,  Nelson  v.  (13  Johns.  N.  Y.  175), 

352«. 

Ducett  v.  Wolf  (81  Mich.  311),  117. 
Ducie  v.  Ford  (8  Mont.  233),  454,  509. 

v.  Ford  (138  U.  S.  587),  89,  476. 

Duckett  v.  Pool  (33  S.  C.  238),  135. 
Dudfield,  Edan  v.  (1  Q.  B.  302),  319, 

321. 
Dudley  v.  Bachelder  (53  Me.  403),  86. 

v.  Cadwell  (19  Conn.  218),  65. 

,  Commonwealth  v.  (10  Mass.  403), 

60. 

v.  Elkins  (39  N.  H.  78),  76. 

Dudlow,  Wildes  v.  (L.  R.  19  Eq.  198), 

1616,  162. 
Dueber  M'f'g  Co.,  Dalzell  v.  (149  U.  S. 

320),  298. 
Duff,  McG.  v.  (12  N.  Y.  680),  24. 

v.  Snider  (54  Miss.  245),  278o,  289. 

Duffey,  Clark  v.  (24  Ind.  271),  294. 
Duffield,  Coe  v.  (7  Moore,  252),  405. 

,  Potter  v.  (L.  R.  18  Eq.  4),  373. 

,  Wallace  v.  (2  Pars.  Pa.  Eq.  Cas. 

81),  81. 
Duffy  r.  Patten  (74  Me.  396).  279. 

v.  Wunsch  (42  N.  Y.  243),  157. 

Dugan  v.  Gittings   (3  Gill,  Md.   138), 

216,  463,  465. 

,  Graves  v.  (6  Dana,  Ky.  331),  89. 

Duinnern  v.  Rich  (22  Wise.  550),  28. 
Duke,  Angell  v.  (L.  R.  10  Q.  B.  174), 

117,  117a,  141,233. 


TABLE  OF  CASES. 


xliii 


Duke,  Dixon  v.  (85  Ind.  434),  136. 

v.  Harper  (6  Yerg.  Term.  280),  38. 

Dulling,  Tynan  v.  (25  S.  W.  Kep.  Tex. 

466),  370a. 
Dumaresly,  Fischli  v.  (3  A.  K.  Marsh. 

Ky.  23),  90,  96. 
Dumn  v.  Uothermel  (112  Pa.  St.  272), 

38. 
Dunbar,  Lillie  ».  (62  Wise.  198),  257. 

v.  Smith  (66  Ala.  490),  200a. 

Duncan  v.  Blair  (5  Denio,  N.  Y.  196), 

142,  147,  268. 

,  Evans  v.  (1  Tyrw.  283),  138,  213. 

c.  Sylvester  (16  Me.  388),  71,  72. 

Duncuft  v.  Albrecht  (12  Sim.  189),  258, 

296. 
Dundas  v.  Dutens  (1  Ves.  Jr.  196),  223, 

459. 
Dung  v.  Parker  (52  N.  Y.   494),  127, 

135a. 

Dungan,  Putnam  v.  (89  Cal.  231),  365. 
Dunham,   Sullivan   v.   (42  Mich.  518), 

267. 
Lumber  Co.,  Clark  v.  (86  Ala.  220), 

183. 
Dunkirk  R.  R.,  Reynolds  «.  (17  Barb. 

N.  Y.  613),  366. 
Dunlap  v.  Thome  (1  Rich.  S.  C.  Law, 

213),  205. 

v.  Thomas  (69  Iowa,  358),  230. 

Dunlop,  McKnight  p.  (5N.  Y.  637),  337. 
,  Stockdale  v.  (6  Mees.  &  W.  224), 

138/. 

Dunn,  Maclean  v.  (4  Bing.  722),  370a. 
v.  Moore  (3  Ired.  N.  C.  Eq.  364), 

448,  490,  610a. 
v.  Tharp  (4  Ired.  N.  C.  Eq.  7), 

215. 

r.  West  (5  B.  Mon.  Ky.  376),  161c. 

,  Wylson  ».  (L.  R.  34  Ch.  D.  569), 

3466. 

Dunne  v.  Ferguson  (1  Hayes,  540),  251. 
Dunphy,  Ryan  v.  (4  Montana,  342),  131. 
v.  Ryan  (116  U.  S.  491),  118a,  131, 

2610,439,  511. 

Dunsford,  Eyre  v.  (1  East,  318),  181. 
Dunsterville,  Ball  v.  (4  T.  R.  313),  11. 
Dunston,  Uex  v.  (Ry.  &  M.  112),  517. 
Duntley,  Beardsley  v.  (69  N.  Y.  577), 

"  441c,  44-la,  476. 
Duppa  v.  Mayo  (1  Wms.  Saund.  380, 

note),  605a. 
Durant  v.  Davis  (10  Tenn.  522),  94. 

v.  Rogers  (71  111.  121),  608. 

Duren,  Aiken  v.  (2  Nott  &  McC.  S.  C. 

370),  164. 

Durftje  v.  O'Brien  (16  R.  I.  213),  289. 
Durgin,  Clement  c.  (5  Greenl.  Me.  9), 

28,  29,  30,  270. 
Durham,  Fickett  v.  (109  Mass.  419),  90. 

v.  Hiatt  (127  Ind.  614),  279. 

,  Manrow  r.  (3  Hill,  N.  Y.  684), 

406. 


Durham  v.  Manrow  (2  N.  Y.  541),  164. 
Durin,  Price  v.  (56  Barb.  N.  Y.  647), 

353. 
Durrell  i>.  Evans  (1  Hurlst.  &  C.  174), 

354,  357,  370u. 
Dustin,   Goodridge   i;.   (6  Met.    Mass. 

363).  75. 

Dutch  v.  Boyd  (81  Ind.  146),  135. 
Dutcher,  Force  v.  (18  N.  J.  Eq.  401), 

385,  493. 

,  Jarvis  v.  (16  Wise.  307),  64. 

Dutens,   Dundas  v.  (I  Ves.  Jr.   196), 

223,  459. 

Duval,  Ollever  v.  (32  S.  C.  273),  197. 
Duvall  i'.  Peach  (1  Gill,  Md.  172),  268. 
Dwinel  v.  Veazie  (36  Me.  609),  87. 
Dyer,  Brewer  v.  (7  Cush.  Mass.  337),  42, 

166a,  1666. 

v.  Clark  (5  Met.  Mass.  562),  259. 

,  Cole  v.  (I  Cromp.  &  J.  461),  388, 

404. 
v.  Graves  (37  Vt.  369),  142,  150, 

270. 

v.  Libby  (61  Me.  45),  325. 

v.  Martin  (4  Scam.  111.  146),  498. 

v.  Sanford  (9  Met.  Mass.  395),  25, 

27a. 

Dyers  Appeal  (107  Pa.  St.  446),  111. 
Dygert    v.   Remerschnider   (32  N.   Y. 

629),  215a. 
Dykers  v.  Townsend  (24  N.  Y.  57),  364. 


E. 

Eager,  Westbrook  v.  (1  Harr.  N.  J.  81), 

256. 
Eagle  Machine   Co.   v.    Shattnck  (53 

Wise.  455),  165. 

East,  Pearson  v.  (36  Ind.  27),  478. 
,  Rainbolt   v.  (56  Ind.   538),  140, 

2156. 

Easter  v.  White  (12  Ohio  St.  219),  161c. 
Eastern  Counties    R.  R.,  Scott  v.  (12 

Mees.  &  W.  33),  308.  335,  336. 
Eastern  R.  R.  v.  Benedict    (10  Gray, 

Mass.  212),  296a. 
Eastham  t;.  Anderson  (119  Mass.  626), 

117. 

Eastman,  Bank  v.  (44  N.  H.  438),  61. 
,  Davis  v.  (1  Allen,  Mass.  422),  316, 

326,  334a. 
Easton,  Howard  v.  (7  Johns.  N.  Y.  205), 

231,  233. 

v.  Montgomery  (90  Cal.  307),  365. 

,  Smith  v.  (54  Md.  138),  174. 

Eastwood  v.  Kenyon  (11  Ad.  &  E.  438), 

188,511,518. 
Eaton  v.  Eaton  (35  N.  J.  L.  290),  118. 

v.  Jaques  (2  Doug.  455),  65. 

v.  Tallmadge  (24  Wise.  217),  71. 

i;.  Whitaker  (18  Conn.  222),  461, 

467. 


xliv 


TABLE    OF   CASES. 


Eberly  v.  Leliman  (100  Pa.  St.  542), 

467. 
Ebert  v.  Wood  (1  Binn.  Pa.  216),  74, 

467. 
Eccles,  Bacon  v.  (43  Wise.  227),  316e, 

326,  384. 

Echols  v.  Cheney  (28  Cal.  157),  13. 
Eckemode,  Seliriver  v.  (94  Pa.  St.  456), 

269. 

Ecker  v.  Bohn  (45  Md.  278),  505. 
Eckert  v.  Eckert  (3  Penna.  Rep.  332), 

452,  454,  481,  482,  490. 
Eckhart,    Syler   v.  (I  Binn.  Pa.  378), 

467,  487. 

Eckman  v.  Brash  (20  Fla.  763),  385. 
Edan  v.  Dudfield  (1  Q.  B.  302),  319, 

321. 
Eddowes,    Stewart  v.  (L.  R.  9  C.  P. 

311),  345a. 
Eddy,  Curie  v.  (24  Mo.  117).  267. 

v.  Davidson  (42  Vt.  56),  197. 

,  Pond  v.  (113  Mass.  149),  441a. 

v.  Roberts  (17  111.  505),  193. 

Edelen  r.  Gough  (5  Gill,  Md.  103),  391. 
v.  Clarkson  (3  B.  Mon.  Ky.  331), 

1226.  519. 

Eden  v.  Chaffee  (160  Mass.  225),  193. 
Edenfield  v.  Canady  (60  Ga.  456),  1606. 
Edes,  Wood  v.  (2  Allen,  Mass.  578), 

27a. 
Edge  v.  Strafford  (1  Cromp.  &  J.  391), 

20,  32,  37,  230. 

Edgerly  v.  Edgerly  (112  Mass.  175),  92. 
Edgerton  v.  Hodge  (41  Vt.  676),  341, 

3426. 

,  Yale  v.  (14  Minn.  194),  193. 

Edison,  Crawford   v.   (45  O.  St.  239), 

199«. 

Edson,  Stearns  v.  (63  Vt.  259),  346. 
Edwards  v.  Fry  (9  Kans.  285),  480. 
Edwards  v.  Grand  Trunk  R.  R.  (54  Me. 

105),  305. 

,  Hollis  v.  (1  Vern.  159),  466,  488. 

,  Jenks  v.  (11  Exch.  775),  37a. 

v.  Jevons  (8  C.  B.  436),  403. 

i).  Johnson  (3  Houst.    Del.  435), 

370. 
v.  Kelly  r6  Maule  &  S.  208),  206, 

208,  209. 

,  Little  v.  (69  Md.  499),  165. 

,  Montgomery  v.  (46  Vt.  151 ),  508. 

,  Moore  v.  (4  Ves.  23),  515,  518, 

530. 

v.  Morgan  (100  Pa.  St.  330),  494. 

,  Tucker  v.  (7  Col.  209),  505. 

v.  Tyler  (141  III.  454),  370". 

,  Vassault  v.  (43  Cal.  458),  505. 

Egerton  v.  Mathews  (6  East,  307),  381, 

389. 
Eggleston  v.  Wagner  (46  Mich.  610), 

12. 
Ehle,  Quackenbush  v.  (5  Barb.  N.  Y. 

469),  263,  275. 


Eichelberger  ;?.  M'Cauley  (5  Harr.  & 

J.  Md.  213),  307. 
Eighruie,  Allen  v.  (14  Hun,  N.  Y.  559), 

165. 

,  Booth  v.  (60  N.  Y.  238),  193. 

Biting,  Voorheis  v.  (22  S.  W.  Rep.  Ky. 

80),  385. 

Ela,  Webster  v.  (5  N.  H.  540),  373. 
Elbert  v.  Los  Angeles  Gas  Co.  (97  Cal. 

244),  348. 

Elder,  Mooney  r.  (56  N.  Y.  238).  135a. 
v.  Warfield  (7  Harr.  &  J.  Md.  391), 

196,  197,  199,  504. 
Eldredge,  Jenkins   v.  (3  Story,  C.  C. 

181),  86,  88,  94,  94a,  96,  101, 

111,  113,  440. 
Eley  v.  Positive  Assurance  Co.  (1  Exch. 

Div.  88),  281a. 
Elfe  v.  Gadsden  (2  Rich.  S.  C.  Law, 

373),  346,  382«. 
Elgin  Citv  Banking  Co.,  Gould  v.  (136 

111.  60),  465. 

Eliot,  Hills  v.  (12  Mass.  26),  82. 
Elkins,  Dudley  v.  (39  N.  H.  78),  75. 

v.  Timlin  (151  Pa.  St.  491),  214. 

Ellenwood,  Coburn  r.  (4  N.  H.  99),  74«. 
Ellet  v.  Paxson  (2  Watts  &  S.  Pa.  418), 

126,  226. 

Ellicott  v.  Turner  (4  Md.  476).  270,  289. 
Elliot  v.  Barrett  (144  Mass.  256),  3706, 

371a. 
Elliott  v.  Armstrong  (2  Blackf.    Ind. 

198),  92,  93. 
,  Boyers  v.  (1  Humph.  Tenn.  204), 

259. 
r.  Brown   (3   Swanst.   489,  note), 

259,  260. 
v.  Giese  (7  Harr.  &  J.  Md.  457), 

191,  391. 

v.  Jenness  (111  Mass.  29),  505. 

v.  Johnson  (L.  R.  2  Q.  B.  120),  38. 

r.  Thomas  (3  Mees.  &  W.   170), 

326,  335,  511. 
Ellis  v.  Bray  (79  Mo.  227),  377. 

v.  Cary  (74  Wise.  176),  118. 

,  Dawson  r.  (1  Jac.  &  W.  524),  130 

v.   Deadman  (4  Bibb,   Ky.  460), 

346,  354,  376,  382. 
w.Ellis   (1  Dev.  N.  C.  Eq.  341), 

448,  498. 

r.  Paige  (1  Pick.  Mass.  43),  32,  38. 

r.  Smith  (1  Ves.  Jr.  10),  9. 

Ellison  v.  Brigham  (38    Vt.  64),   302, 

303. 
v.  Daniels  (11  N.  H.  274),  65. 

v.  Jackson  Water  Co.   (12   Cal. 

542),  391. 

Ellston,  Bard  v.  (31  Kans.  274),  487. 
Ellwood  v.  Monk  (5  Wend.  N.  Y.  235), 

169. 

Elmore,  Day  ».  (4  Wise.  190),  408^.   - 
v.  Kingscote   (5  Barn.  &  C.  583), 

376. 


TABLE   OF  CASES. 


xlv 


Elmore  v.  Stone  (1  Taunt.  457),  3186, 

324. 

Else,  Upton  v.  (12  Moore,  303),  137. 
EUon  o.  Spraker  (100  Ind.  374),  214a. 
Elston,  Bard  /-.  (31  Kans.  274),  453. 

v.  Castor  (101  Intl.  426),  353. 

,  Cooper  v.  (7  T.  H.  14),  293. 

Elting  v.  Vanderlyn   (4  Johns.  N.  Y. 

237),  190,  605. 
Elwell  v.  Sliaw  (10  Mass.  42),  13. 

v.  Walker  (52  Iowa,  250),  346«. 

Ely,  lluber  r.  (45  Barb.  N.   Y.   169), 

1666. 
v.  Ormsby  (12  Barb.  N.  Y.  570), 

138/,  342. 

Emblers,  Fenton  v.  (3  Burr.  1278),  275. 
Embury  v.  Conner  (3  N.  Y.  511),  270. 
Emerson    v.    Aultman   (69   Md.   125), 

40&J. 

,  Riddle  v.  (1  Vern.  108),  28. 

v.  Slater  (22  How.  U.  S.  28),  212, 

214,  214a. 
Emery,  Astey  v.  (4  Maule  &  S.  262), 

311,327. 
,  Rtiggles  v.  (14  Sup.  Ct.  Rep.  1083), 

463. 

,  Cutter  v.  (37  N  H.  567),  161c. 

Osborn  v.  (51  Mo.  App.  408),  197. 

v.  Smith  (46  N.  H.  151),  126,  289, 

290. 

Emley  v.  Drumm  (36  Pa.  St.  123),  264. 
,  Satterthwaite  v.   (3  Green.  N.  J. 

Ch.  489),  223. 

Emmel  v.  Hayes  (102  Mo.  186),  478. 
Emmerson  v.  Hcelis  (2  Taunt.  38),  238, 

335,  369. 
Emmet   v.    Dewhurst   (3  McN.   &  G. 

587),  179,  422. 
Emmott  r.  Kearns  (5  Bing.  N.  R.  559), 

404. 
Empkie   Hardware  Co.,  Rogers  v.  (24 

Neb.  653),  204. 
Endicott  r.  Penny   (14  Smedes  &  M. 

Miss.  144),  369. 

Englesby,  Merrill  r.  (28  Vt.  150),  157. 
English,  Atchison  T.  &  S.  F.  It.  li.  v. 

(38  Kans.  110),  276,  289. 
Ennis,   Murley   v.   (2   Col.    300),   262, 

263a. 

,  Stout  v.  (28  Kans.  706),  134,  535. 

c.  Waller  (3  Blackf.  Ind.  472),  78, 

368,  369. 

Enos  v.  Hunter  (4  Gilm.  111.  211),  91,  93. 
Entriken,  Washabaugh  v.  (36  Pa.   St. 

613),  226. 
Entwistle  v.  Davis  (L.  R.  4  Eq.  272), 

268. 
Entz  v.  Mills  (1   McMull.  S.  C.  Law, 

453),  36». 

Eppich  ».  Clifford  (6  Col.  498),  884,  891. 
Equitable  Gas  Light  Co.  v.  Baltimore 

Mfg.  Co.   (63  Md.  286),  444, 

445u,  446,  460a. 


Erb,  Watson  v.  (33  Ohio  St.  35),  96. 
Erben  v.  Lorillard  (19  N.  Y.  299),  126. 
Erie  Preserving   Co.,   Lincoln  v.  (132 

Mass.  129),  372. 
Erskine  v.  Plummer  (7  Greenl.  Me.  447), 

27,  245,  255«. 

Ervien,  Joslin  v.  (50  N.  J.  Law,  39),  264. 
Eshleman  v.  Harnish  (76  Pa.  St.  97), 

198,  199,  199a. 
v.  Henrietta  Vineyard  Co.  (36Pac. 

Rep.  Cal.  775),  467. 
Esmay  v.  Groton  (18  111.  483).  499. 
Espalla  v.  Wilson  (86  Ala.  487),  172. 
Essex  v.   Essex   (20   Beav.  442),   259, 

261c. 
Estabrook  v.  Gebhart  (32  O.  St.  415), 

1666. 

Estate  Simmons  (140  Pa.  St  567),  467. 
Esty  v.  Aldrich  (46  N.  H.  127),  276a. 

v.  Baker  (48  Me.  405),  42. 

Evans  v.  Ashley  (8  Mo.  177),  78,  857, 

358. 

v.  Bicknell  (6  Ves.  186),  181. 

,  Brackett  v.  (1  Cusli.  Mass.  79), 

117,  269. 
,  Briggs  v.  (1  E.  D.   Smith,  N.  Y. 

192),  198. 

v.  Duncan  (1  Tyrw.  283),  138  213. 

,  Durrell  v.  (1  "Hurlst.  &  C.  174), 

354,  357,  370a. 

v.  Hardeman  (15  Tex.  480),  268 

v.  Harris  (2  Ves.  &  B.  361),  518. 

v.  Hoare  (L.  R.  1  Q.  B.  D.  1892, 

593),  358. 

,  Holmes  v.  (48  Miss.  247),  385. 

,  Jackson  v.  (44  Mich.  510),  140. 

v.  Lee  (12  Nev.  393),  483. 

v.  Mason  (1  Lea,  Tenn.  26),  159. 

v.  Merriken  (8  Gill  &  J.  Md.  39), 

65. 
,  Old  Colony  R.  R.  v.  (6  Gray,  Mass. 

25),  344,  365,  366. 
v.  Prothero  (1  De  G.,  M.  &  G.  572), 

316,  354. 

,  Reed  v.  (17  Ohio,  128),  391. 

v.  Roberts  (5  Barn.  &  C.  829),  228, 

238,  240. 

,  Smith  v.  (1  Wils.  313),  9,  355. 

,  Smith  v.  (36  S.  C.  69),  819,  321c. 

,  Wilkinson  v.  (L.  R.  1  C.  P.  407), 

138e,  3-166,  348,  354a. 
,  Williams  v.  (39  Mo.  201),  319rr, 

321. 

,  Willis  v.  (2  Ball  &  B.  225),  501. 

v.  Winona  Lumber  Co.  (30  Minn. 

615),  88. 

Evars  v.  Kamphaus  (59  Pa.  St.  379),  75. 
Everhart's  Appeal  (106  Pa.   St.   84f), 

2616. 
Everman  r.  Herndon  (11  So.  Rep.  Miss. 

652),  348. 

Everts,  Cross  v.  (28  Tex.  523),  505. 
Evoy  v.  Tewksbury  (5  Cal.  286),  391. 


xlvi 


TABLE   OF  CASES. 


Ewing  v.  Arthur  (1  Humph.  Tenn.  537), 

65. 
v.  Osbaldiston  (2  Mylne  &  C.  53), 

120. 

v.  Tees  (1  Binn.  Pa.  450),  226. 

Ewins  v.  Calhoun  (7  Vt.  79),  181. 
Exchange  Bank  v.  Rice  (107  Mass.  37), 

166a,  1666. 

,  Smith  v.  (110  Pa.  St.  508),  187. 

Eyre,  Coleman  v.  (45  N.  Y.  38),  2616, 

294a. 

v.  Dunsford  (1  East,  318),  181. 

v.  Eyre  (19  N.  J.   Eq.  102),  448, 

492,  493. 
v.  Ivison   (2  Bro.  C.  C.  559,  note), 

515. 
,  Popham  v.  (Loffl,  786),  460,  498. 


F. 

Fabian,  Nunn  v.  (L.  R.  1  Ch.  App.  35), 

479. 

Fair,  Humphrey  v.  (79  Ind.  410),  150. 
Fairbanks  v.  Richardson  Drug  Co.  (42 

Mo.  App.  262),  309a. 
Fairchild  v.  Fairchild  (5  Hun,  N.  Y. 

407),  90. 

v.  Fairchild  (64  N.  Y.  471),  259. 

Falls  v.  Conway  Ins.  Co.  (7  Allen,  Mass. 

46),  229. 

Fall  v.  Hazelrigg  (45  Ind.  576),  272. 
Fall  River  Co.  v.  Borden    (10   Cush 

Mass.  458),  259,  260. 
Fallen   v.  Chronicle  Pub.  Co.   (1  Mc- 

Arthur    I),   of  C.  485),  2766, 

281a,  448. 

Falls,  Meincke  v.  (55  Wise.  427),  305. 
Falmouth  v.  Thomas  (1  Cromp.  &  M. 

89),  126,  233,  254. 

Co.,  Bullock  v.  (85  Ky.  184),  296a. 

Fan,  Boston  v.  (148  Pa.  St.  220),  199. 
Farebrother   v.    Simmons    (5  Barn.  & 

Aid.  333),  367,  368. 
Faria,  Peckham  v.  (3  Doug.  14),  163. 
Faricloth,  Sapp  v.  (70  Ga.  690),  1(366. 
Farina  v.  Home  (16  Mees.  &  W.  119), 

310/,  319a. 
Faringer  v.  Ramsay  (2  Md.  365),  91, 

93. 

Farish  v.  Wilson  (Peake,  73),  190. 
Farley,  Ball  v.  (81  Ala.  288),  183. 
v.  Cleveland  (4  Cowen,  N.  Y.  432), 

169. 
Mfg.  Co.,  Kaufman  v.  (78  Iowa 

679),  336. 
v.  Stokes  ( 1  Sel.  Eq.  Cas.  Pa.  422), 

38,  487,  488. 

,  White  v.  (81  Ala.  563),  264,  369. 

Farlow,    Shumate   v.    (125   Ind.   859), 

282a. 
Farmare,  Woods  v.  (10  Watts,  Pa.  195), 

465,  467. 


Farmer,  In  re  (10  Chicago  Leg.  News, 

395),  259,  26 1/ 

,  Burkhalter  v.  (5  Kans.  477),  198. 

,  Hall  v.  (2  N.  Y.  553),  406. 

v.  Robinson  (2  Camp.  337,  note), 

3o3. 

v.  Rogers  (2  Wils.  26),  7,  42. 

Farmers'   Bank,    Mechanics'    Bank    v. 

(60  N.  Y.  40),  317,  326. 

,  Schafer  v.  (59  Pa.  St.  144),  348. 

,  Uhler  v.  (64  Pa.  St.  406),  164. 

Farmington,  Barkhainstead  v.  (2  Conn. 

600),  65. 

Farnam  v.  Davis  (32  N.  H.  302),  119. 
Farnham,   Boulder   Valley  Co.  v.   (12 

Mont.  1),  461. 

r.  Chapman  (61  Vt.  395),  159. 

,  Putney  v.  (27  Wise.  187),  1666. 

Farnsworth,  Riley  v.  (116  Mass.  223), 

384. 
Farr,  Davis  v.  (26  Vt.  592),  118. 

,  Reed  v.  (35  N.  Y.  113),  17. 

Farrar  v.  Farrar  (4  N.  H.  191),  60,  61. 
Farrington,  Battersbee   v.   (I  Swanst. 

113),  223. 
1).  Donohoe  (L  R.  1.  C.  L.  679), 

282a. 
Farris   v.  Martin   (10   Humph.    Tenn. 

495),  355. 

,  Wilmer  v.  (40  Iowa,  309),  476. 

Farrow,  Church  of   the   Advent  v.  (7 

Rich.  S.  C.  Eq.  378),  385,  448, 

493. 
Farwell  r.  Lowther  (18  111.  252),  373, 

376. 
v.  Mather  (10  Allen,  Mass.  322), 

385. 

v.  Tillson  (76  Me.  227),  279,  281. 

Fassbinder,  Garbanati  v.  (15  Col.  585), 

409. 

Faught,  Moulton  v.  (41  Me.  298),  28,  29. 
Faulks  v.  Burns  (1  Green,  N.  J.  Ch. 

250),  60. 

Faust  v.  Haas  (73  Pa.  St.  295),  95. 
Faxon,  Marion  r.  (20  Conn.  486),  177. 
Fay  v.  Bell  (Hill  &  D.  N.  Y.251),  204. 

,  Lenheim  v.  (27  Mich.  70),  131. 

v.  Wheeler  (44  Vt.  292),  293,  296. 

Fears  v.  Story  (131  Mass.  47),  200a. 
Feeney  v.  Howard  (79  Cal.  625),  608, 

511. 
Fehlinger  v.  Wood  (134  Pa.  St.  517), 

188. 

Fellows,  Pinney  v.  (15  Vt.  525),  93, 100. 
Felthouse   v.  Bindley  (11  C.   B.  N-.  8. 

869),  138/ 

Felton  v.  Smith  (84  Ind.  485),  477. 
Fentiman  v.  Smith  (4  East,  107),  25. 
Fenton  v.  Emblers  (3  Burr.  1278),  275. 
,  Townsend  v.  (30  Minn.  628),  461, 

464. 
Fen  wick  v.  Floyd  (1  Harr.  &  G.  Md. 

172),  78,  346. 


TABLE   OF   CASES. 


xlvii 


Ferbrache  v.  Ferbrachc  (110  III.  210), 

467. 
Fereday  v.  Wightwick  (1  Russ.  &  M. 

45),  259,  260. 
Ferguson,  Blakeney    v.  (8  Ark.  272), 

487. 
v.  Crick  (23  S.  W.  Rep.  Ky.  668), 

75. 

,  Dunne  v.  (Hayes,  640),  251. 

,  Marshall  v.  ("23  Col.  65),  246. 

v.  Staver  (33  Pa.  St.  411),  386. 

,  Haslock  v.  (7  Ad.  &  E.  86),  1846, 

185. 
Fernandes,  McGinnis  v.  (126  111.  228), 

133. 
Ferrell  v.  Ferrell  (1  Baxt.  Tenn.  329), 

232 
,  Ledfor'd  v.  (12  Ired.  N.  C.  285), 

266. 
r.  Maxwell  (28  Ohio  St.  383),  161a, 

I61c. 
Ferris,  Wilkes  v.  (5  Johns.  N.  Y.  335), 

318,  319a. 
Fessenden  v.  Mussey  (11  Cush    Mass. 

127),  382. 
Fett,  Goller  v.  (30  Cal.  482),  230. 

,  Hoffman  v.  (39  Cal.  109),  487. 

Fettermans  Heirs,  Campbell  v.  (20  \V. 

Va.  398),  370«. 

Feusier  v.  Sneath  (3  Nev.  120),  448. 
Fickett  v.  Durham  (109  Mass.  419),  90. 
Fidelity  Real  Estate  Co.,  Burns  v.  (52 

Minn.  31),  411. 

Field,  In  re  (3  Curt.  Eccl.  752),  355a. 
r.  Herrick  (14  Brad.  III.  App.  181), 

38. 

,  Howell  v.  (70  Ga.  592),  1666. 

i'.  Hutchinson  (1  Beav.  599),  507. 

,  Jones  v.  (83  Ala.  447),  634. 

,  Owen  v.  (12  Allen,  Mass.  457), 

81. 
v.  Runk  (22  N.  J.  L.  625),  327,336, 

337. 
v.  White  (L.  R.  29  Ch.  D.  358), 

131. 
Fields,  Fisher  v.  (10  Johns.  N.  Y.  495), 

110,  112. 

Fife,  Steel  v.  (48  Iowa,  99),  354. 
Files  v.  McLeod  (14  Ala.  611),  164. 
Finch  v.  Finch  (15  Ves.  43),  91. 
v.  Finch  (10  Ohio,  St.  601),  134, 

459. 
Findley,  Campbell  v.  (3  Humph.  Tenn. 

380),  166'»,  891. 
Old  National  Bank  v.  (131  Ind. 

225),  135.' 

v.  Wilson  (3  Litt.  Ky.  390),  119. 

Fine  v.  Hornsby  (2  Mo.  App.  61),  298. 
Finney  v.  Apgar  (31  N.  J.  L.  2rtf5),  305. 

r.  Finney  (1  Wils.  34),  230. 

,  Ford  »-.  (35  Ga.  258),  2146,  268, 

448. 
,  Shaw  v.  (13  Met.  Mass.  463),  369. 


Firestone  v.  Firestone  (49  Ala.  128),  86, 

96. 
First  Bapt.  Ch.    See  Baptist  Church. 

See  Ithaca. 

First  National  Bank  v.  Kinner  ( 1  Utah, 

100),  156. 

,  Kohn  v.  (15  Kans.*  428),  172. 

of  Plattsburg  v.  Sowles  (46  Fed. 

Rep.  731),  183,  364a. 
Fischli  v.  Dumaresly  (3  A.  K.  Marsh. 

Ky.  23),  90,  96. 
Fish,  Attaquin  v.  (5  Met.  Mass.  140), 

450. 

v.  Hutchir.son  (2  Wils.  94),  191, 

197. 

v.  Thomas  (5   Gray,   Mass.   45), 

164,  200a,  204. 

Fishback  v.  Green  (87  Ky.  107),  96«. 
Fishbeck  r.  Gross  (112  III.  208),  94. 
Fisher,  Ackerman  r.  (57  Pa.  St.  467), 

466,  487,  494. 
v.  Fields  (10  Johns.  N.  Y.  495),  110, 

112. 

,  Gorham  v.  (30  Vt.428).  316rf,  331. 

,  Harris   Photo  Co.   v.  (81   Mich. 

136),  605. 

,  Hinkle  v.  (104  Ind.  84),  279. 

,  Hughes  v.  (10  Col.  383),  187. 

v.  Kuhn  (54  Miss.  480),  385. 

,  Smith  v.  (59  Vt.  63),  319. 

v.  Wilmoth  (68  Ind. '449),  204. 

Fisk,  Marshall  v.  (6  Mass.  24),  60. 
Fiske  v.  McGregory  (34  N.  H.414),  188. 
Fitch  v.  Burk  (38  Vt.  687),  257. 

,  Crim  v.  (53  Ind.  214),  1666. 

,  French   v.  (67  Mich.  492),  182, 

183. 
,  Sewall  v.  (8  Cowen,  N.  Y.  215), 

302,  306,  369. 

v.  Seymour  (9  Met.  Mass.  462), 

270. 

,  Sherman  v.  (98  Mass.  69),  13. 

Fitz,  Chase  v.  (132  Mass.   359),  216a, 

266. 
Fitzgerald  v.  Dressier  (5  C.  B.  N.  s. 

885),  202. 
v.  Dressier  (7  C.  B.  N.  8. 374),  200a, 

212 
,  Spurrier  v.  (6  Ves.  648),  498,  499, 

601,  505a. 
,  Tempest  v.  (3  Barn.  &  Aid.  680), 

316a,  3186,  3216,  323,  326. 
Fitzmaurice  v.  Bayley  (6  El.  &  B.  868), 

370a. 

it.  Bayley  (9  H.  L.  C.  79),  885. 

Fitzpatrick,   McCabe   v.  (2  Leg.  Gaz. 

138),  270. 

i>.  Woodruff  (96  N.  Y.  561),  293. 

Fitzsimmons  v.  Allen  (39  111.  440),  465. 
v.  Woodruff  (1  Thomp.  &  C.  N.  Y. 

3),  316c,  316rf. 

Fix,  Rottman  r.  (25  Mo.  App.  571),  197. 
Flagg  v.  Dow  (99  Mass.  18),  61. 


xlviii 


TABLE   OF   CASES. 


Flagler,  Sanborn  v.  (9  Allen,  Mass.  474), 

345a,  362,  364,  367. 
Fleet,  Wood  v.  (36  N.  Y.  499),  68,  72. 
Fleming  v.  Donahoe  (5  Del.  Ch.  '255),  81. 

v.   Gilbert  (3  Johns.  N.  Y.  628), 

436. 

v.  Holt  (12  W.  Va.  143),  508. 

v.  Me  Hale  (47  111.  282),  86. 

v.  Ramsey  (46  Pa.  St.  252),  269. 

,  Wolke  v.  (103  Ind.  105),  272. 

Flemm  v.  Whitmore  (23  Mo.  430),  159, 

188. 

Fletcher,  Beekman  v.  (48   Mich.   555), 
385. 

,  Cottington  v.  (2  Atk.  155),  498, 

515  526 

,  Grant  r.  (5  Barn.  &  C.  436),  351. 

,  Lechmere  v.  (1  Cromp.  &  M.  623), 

349. 

,  Washburn  v.  (42  Wise.  152),  346a. 

Flickinger  v.  Shaw  (87  Cal.  126),  31, 

81o. 
Flight  v.  Holland  (4  Russ.  298),  366. 

,  Curling  v.  (5  Hare,  242),  258. 

Flinn  v.  Barber  (64  Ala.  193),  122. 
Flint,  Jones  v.  (10  Ad.  &  E.  753),  245, 
246,  251. 

,  Trustees  of  Free  Schools  v.  (13 

Met.  Mass.  539),  164. 
Flood,  Usher  v.  (83  Ky.  552),  471. 
Flora,  Armstrong  v.  (3  T.  B.  Mon.  Ky. 

43),  193. 

Flournov  v.  Van  Campen  (71  Cal.  14), 
"147. 

v.  Wooten  (71  Ga.  168),  199. 

Flower  v.  Barnekoff  (20  Ore.  132),  262. 
Flowers,  Martin  v.  (8  Leigh,  Va.  138), 

13. 

Floyd   v.  Buckland  (Freem.  Ch.  268), 
487. 

,  Fenwick  v.   (1   Harr.  &  G.   Md. 

172),  78,  346. 

v.  Harrison  (4  Bibb,  Ky.  476),  212. 

Flues,  Becar  v.  (64  N.  Y.  518),  272. 
Flynn  v.  Dougherty  (91  Cal.  669),  305, 

308. 

Flynn,  Gothard  v.  (25  Miss.  58),  64. 
Fobes  v.  Lewis  (3  N.  Y.  W'kly  Digest, 

65),  53. 
Fogelberg,   Maurin  v.   (37  Minn.    23), 

198. 

Foil,  Michael  v.  (100  N.  C.  178),  269. 
Foljambe,  Ogilvie  v.  (3  Meriv.  53),  357, 
Follansbe  v.  Kilbreth  (17  111.  522),  9" 
Follmer  v.  Dale  (9  Pa.  St.  83),  464. 
Fontaine  v.  Bush  (40  Minn.  141),  3276. 

,  Lee  v.  (10  Ala.  755),  187. 

Foos,  Goetz   v.  (14  Minn.    265),    161c, 

188. 
Foote  v.  Bryant  (47  N.  Y.  544),  84. 

,  Gibson  v.  (40  Miss.  788),  90. 

Foquet  v.  Moor  (7  Exch.  870),  47,  60 
254. 


Forbes,  Barney  v.  (118  N.  Y.  580),  405. 

-  v.  Hamilton  (2  Tyler,  Vt.   356). 

233. 
Force  v.  Dutcher  (18  N.  J.  Eq.  401), 

385,  493. 

Ford,  Ducie  v,  (8  Mont.  233),  454,  509. 
-,  Ducie  v.  (138  U.  S.  587),  89,  476. 

-  v.  Finney  (35  Ga.  258),  2146,  268, 

448. 

-  ,  Frazer  v.  (2  Head,  Tenn.  464), 

365. 

-  v.  Steele  (31  Neb.  521),  463. 
Foreman,  Wilson  v.  (2  Dick.  693),  90. 
Forest,  North   r.  (15  Conn.  400),  134, 

296a,  454. 
Forgey,  Nelson  v.  (4  J.  J.  Marsh.  Ky. 

569),  123. 
Forrest  City,  Halbut  v.  (34  Ark.  246), 

39. 
Forster  v.  Hale  (3  Ves.  Jr.  696),  99,  105, 

108,  260,  455,  492. 

-  v.  Hale  (5  Ves.  308),  82,  97,  98,  99, 

259,  260. 

—  ,  Hawes  v.  (1  Moo.  &  R.  368),  351. 
Forsyth  v.  Clark  (3  Wend.  N.  Y.  637), 

87. 
Fortescue  v.  Crawford  (105  N.  C.  29), 

385. 
Forth  v.  Stanton  (1   Saund.  210),  190, 

194,  505a. 

Forwood,  Doe  v.  (3  Q.  B.  627),  43. 
Foshee,  Tate  v.  (117  Ind.  322),  70. 
Fosher,  Piper  v.  (121  Ind.  407),  289. 
Foss,  Cleaves  v.  (4  Greenl.  Me.  1),  369. 

-  ,  Freeman  r.  (145  Mass.  361),  118. 

-  ,  Hess  v.  (10  Wend.  N.  Y.  436),  150, 


. 
Foster,  Ames  v.  (106  Mass.  400),  204. 

-  v.    Athenaeum    Trustees    (3   Ala- 

302),  89,  92. 

-  v.  Charles  (6  Bing.  396),  181. 

-  v.  Maginnis  (89  Cal.  264),  476. 

-  v.  Napier  (74  Ala.  393),  391. 

-  ,  Savage  v.  (9  Mod.  35),  448,  487. 

-  ,  Sprague  i>.  (48  111.  App.  140),  283. 
--  ,  White  v.  (102  Mass.  375),  254c. 
Fotherley,  Wanchford  v.  (Freem.  Ch. 

201),  218,  220. 
Fountain  v.  Menard  (53  Minn.  443),  262. 

-  ,  Warner  v.  (28  Wise.  405),  76. 
Fowle  v.  Freeman  (9  Ves.  351),  365. 
Fowler  v.  Burget  (16  Ind.  341),  135. 

-  v.  Lewis  (3  A.  K.  Marsh.  Ky.  443), 

511. 

-  ,  Powers  v.  (4  El.  &  B.  511),  399, 

404. 

-  ,  Teague  v.  (56  Ind.  569),  441. 
Fowler  Elevator  Co.  v.  Cottrell  (38  Neb. 

512),  348. 
Fox,  Barber  v.  (1  Stark.  270),  197. 

-  ,  Barber  v.  (2  Saund.  136),  190. 

-  v.  Courtney  (111  Mo.  147),  385. 

-  ,  Lawrence  v.  (20  N.  Y.  268),  1666. 


TABLE   OF  CASES. 


xlix 


Fox,  Moore  v.  (10  Johns.  N.  Y.  244), 

283. 

v.  Nathan  (32  Conn.  348),  35. 

v.  Utter  («  Wash.  299),  305. 

,  Wilde  v.  (1  Rand.  Va.  165),  476, 

479. 
Foxcroft,  Lester  v.  (Colics,  P.  C.  108), 

442. 

Foy,  Foy  v.  (2  Hayw.  N.  C.  296),  81. 
Frame  v.  Dawson  (14  Ves.  386),  452, 

454,  456,  480. 
Francis,  Godwin  v.  (L.  R.  6  C.  P.  296), 

352. 

,  Halstead  v.  (31  Mich.  113),  166o. 

,  Parks  v.  (50  Vt.  626),  283. 

Frank  v.  Harrington  (36  Barb.  N.  Y. 

415),  256. 

,  Harris  v.  (81  Cal.  280),  197,  508. 

v.  Murphy  (7  Mont.  4),  310. 

,  Wheeler  v.  (78  111.  124),  133,  460a. 

Franklin  v.  Long  (7  Gill  &  J.  Md.  407), 

Site. 

,  Manning  v.  (81  Cal.  205),  123. 

,  McGraw  v.  (2  Wash.  17),  188. 

,  Tallman  v.  (14  N.  Y.  584),  3466, 

385. 

v.  Tuckerman  (68  Iowa,  572),  463. 

Franklin  County,  Sullivant  u.  (3  Ohio, 

89),  20. 
Frankly n   L'.  Lamond   (4   C.   B.  637), 

335. 
Frary  v.  Sterling  (99  Mass.  461),  283, 

289. 
Fraser  v.  Child  (4  E.  D.  Smith,  N.  Y. 

153),  270,  445a. 

r.  Gates  (118  111.  99),  291a. 

Frazee,  Dixon  v.  (1  E.  D.  Smith,  N.  Y. 

32),  197,  198. 
Frazer  t;.  Ford  (2  Head,   Tenn.  464), 

365. 

v.  Howe  (106  111.  563),  118,  371. 

Frazier,   Keesling   v.    (119   Ind.    185), 

161c. 

,  Terrill  ».  (79  Ind.  473),  118. 

Frear  v.  Hardenbergh  (6  Johns.  N.  Y. 

272),  233. 
Freaze,  Postlethwait  v.  (31  Pa.  St.  472), 

226. 
Freeh  v.  Yawger  (47  N.  J.  Law,  157), 

406. 
Fredericks,  Sayre  o.  (16  N.  J.  Eq.  205), 

65. 
Freeburger,  Rosenthal  v.  (26  Md.  75), 

476. 

Freed  Furniture  Co.,  Hudson  Furni- 
ture Co.  v.  (36  Pac.  Rep.  Utah, 

134),  3276. 

v.  Richey  (115  Pa.  St.  361),  117. 

Freeland  v.  Charnley  (80  Ind.  182),  354a, 

3546. 

v.  Ritz  (164  Mass.  257),  3466. 

Freeman,   Bailev  i>.   (11  Johns.  N.  Y. 

221),  406. 


Freeman,  Bray  v.  (2  Moore,  114),  157. 

v.  Foss  (145  Mass.  361),  118. 

,  Fowle  v.  (9  Ves.  351),  365. 

v.  Freeman  (2  Pars.  Pa.  Eq.  Cas. 

81),  81. 

v.  Freeman  (43  N.  Y.  34),  491a. 

,  Langford  v.  (60  Ind.  46),  441,  606. 

,  Pasley  v.  (3  T.  R.  51),  181. 

,  Tice  v.  (30  Minn.  389),  348,  385. 

,  Wright  v.  (6  Harr.  &  J.  Md.  467), 

29. 
Freeport  v.  Bartol  (3  Greenl.  Me.  340), 

348,  451. 
French  ».  Fitch  (67   Mich.  492),  182, 

183. 

v.  French  (2  Man.  &  G.  644),  178. 

,  French  v.  (84  Iowa,  655),  204. 

v.  Owen  (2  Wise.  250),  28. 

,  Paine  t'.  (4  Ohio,  318),  65. 

v.  Thompson  (6  Vt.  54),  202. 

,  Young  v.   (35  Wise.    Ill),  200a, 

204. 
Fretwell,  Graham  v.  (3  Man.   and  G. 

368),  363. 
Frick,  Randolph  v.  (50  Mo.  App.  275), 

411. 
,  Rhodes  v.  (6  Watts,  Pa.  15),  74, 

467. 
Fricker  v.  Thomlinson    (1  Man.  &  G. 

772),  338,  352a. 
Friend,  Watts  v.  (10  Barn.  &  C.  446), 

254,  303,  311. 
Frieze  v.  Glenn  (2  Md.  Ch.  Dec.  361), 

461. 
Fripp,  Sams  v.  (10  Rich.  S.  C.  Eq.  447), 

366. 

Frisbee,  Dickson  v.  (52  Ala.  16-5),  291. 
Frost,  Chesley  »'.  (1  N.  H.  145),  59. 

v.  Deering  (21  Me.  156),  126. 

v.  Hill  (3  Wend.  N.  Y.  386),  369. 

,  Rogers  v.  (14  Tex.  267),  13. 

,  Silsby    v.   (3  Wash.   Terr.  N.   8. 

388),  1666. 

v.  Tarr  (53  Ind.  390),  275. 

,  Telford  v.  (76  Wise.  172),  229. 

,  Wolfe  v.  (4  Sandf.  N.  Y.  Ch.  72), 

209,  488. 

,  Young  v.  (1  Md.  377),  74. 

Fry,  Edwards  v.  (9  Kans.  285),  480. 

,  Gangwer  v.  (17  Pa.  St.  49] ),  486. 

v.  Platt  (32  Kans.  62),  384. 

Frye  v.  Shepler  (7  Pa.  St.  91),  454,  473, 

474,  493. 

Fryer  ».  Warne  (29  Wise  511),  29,  30. 
Fuchs  v.  Fudis  (48  Mo.  App.  18),  463. 
Fugate  v.  Hansford  (3  Litt.  Ky.  262), 

354«,  379. 
Fullam  v.  Adams  (37  Vt.  391),   1666, 

214,  214e,  187. 
v.  West  Brookfield  (9  Allen,  Mass. 

D,  13. 
Fuller,  Clarke  v.  (16  C.  B.  N.  a.  24), 

38o. 


1 


TABLE   OF  CASES. 


Fuller,  Goodspeed  v.  (46  Me.  141),  159. 

,  Kneeland  v.  (51  Me.  518),  118. 

v.  Plymouth  Comm'rs  (15  Pick. 

Mass.  81),  270. 

,  Slierburne  v.  (5  Mass.  133),  60. 

v.  Swett  (6  Allen,  Mass.  219,  note), 

40. 
Fulmerston  v.  Steward  (Plowd.  1076), 

49. 

Fulton  v.  Moore  (25  Pa.  St.  468),  265. 
,  Paine  v.  (34  Wise.  83),  169,  171, 

343. 
Furbish  v.  Goodnow   (98  Mass.  297), 

214c. 
Furnivall  v.  Grove  (8  C.  B.  N.  8.  496), 

55. 


G. 


Gabbald,  German  v.  (3  Binn.  Pa.  302), 

81. 

Gaddis  v.  Leeson  (55  III.  83),  342a. 
Gadsden,  Elfe  v.  (2  Rich.  S.  C.  Law, 

73),  346,  382a. 
v.  Lance  (M'Mull.  S.  C.  Eq.  87), 

298. 
Gage  v.  Jaqueth  (1  Lans.  N.  Y.  207), 

365. 

Gaines,  Morris  v.  (82  Tex.  255),  165. 
Gainus  v.  Cannon  (42  Ark.  503),  84. 
Galbraith,  Galbraith  v.  (5  Kans.  241), 

467. 
Galbreatli  v.  Galbreath  (5  Watts,  Pa. 

146),  72,  74. 
Gale  v.  Nixon  (6  Cowen,  N.  Y.  445), 

366. 

,  Norton  r.  (95  111.  533),  378. 

Gallager  v.  Brunei    (6  Cowen,  N.  Y. 

346),  174,  183,  185. 
Gallagher,  Buzzell  ».  (28  Wise.  678), 

70,  74. 

v.  Mars  (50  Cal.  23),  111. 

v.  Nichols  (60  N.  Y.  438),  174. 

Galley,  Brown  v.  (Hill  &  D.  N.  Y.  310), 

28. 

,  Galley  ».  (14  Neb.  174),  117. 

Galloway,  Carpenter  v.  (73  Ind.  418), 

811,  411. 

Gallup,  Lerch  v.  (67  Cal.  595),  159. 
Galvin   v.  MacKenzie   (21    Ore.   184), 

.334. 
v.  Prentice  (45  N.  Y.  162),  122, 

126. 

Galway  v.  Shields  (66  Mo.  313),  122. 
Gambril,  Sailors  w.  (Smith,  Ind.  82), 451. 
Gammon,  Bird  v.  (3  Bing.  N.  R.  883), 

193. 

Gangwer  v.  Fry  (17  Pa  St.  49),  486. 
Gannra,  Brick  v.  (36  Hun,  N.  Y.  52), 

272 
Cans  v.  Vanderveer  (34  N.  J.  L.  293), 

32a. 


Ganter  v.  Atkinson  (35  Wise.  38),  28. 
Garbauati  v.  Fassbinder  (15  Col.  535) 

409 
Garbutt    v.   Watson    (5  Barn.  &  Aid. 

613),  304,  306. 

Gardels  v.  Kloke  (36  Neb.  493),  365. 
Gardiner  v.  Hopkins  (5  Wend.  N.  Y. 

23),  202. 
Gardner  v.  Gardner  (5  Gush.  Mass.  483), 

9,  11,  1«. 

v.  Grout  (2  C.  B.  N.  s.  340),  334. 

v.  Hazleton  (121  Mass.  494),  384. 

,  Jackson  v.  (8  Johns.  N.  Y.  394), 

44. 

v.  Joy  (9  Met.  Mass.  179),  307. 

,  Lasher  v.  (124  111.  441),  344. 

v.  Rowe  (2  Sim.  &  S.  346),  97, 136. 

v.  Rundell  (70  Texas,  453),  80. 

,  Switzer  v.  (41  Mich.  164),  50. 

Gardner  Bank  v.  Wheaton  (8  Greenl. 

Me.  373),  93. 

Gardom,  Ex  parte  (15  Ves.  288),  388. 
Garey,  Nelson  v.  (114  Mass.  418),  27. 
Garfield  v.  Paris  (96  U.  S.  557),  320, 

321,  334,  335,  338. 
Garland,  Ott  v.  (7  Mo.  28),  121. 

,  Wynn  v.  (19  Ark.  23),  511. 

Garman,  Rowland  v.  (1  J.  J.  Marsh. 

Ky.  76),  123. 

Garner  v.  Hudgins  (46  Mo.  399),  161c. 
Garnett,  Montague  v  (3  Bush,  Ky.  297), 

126,  289. 
Garret  v.  Malone  (8  Rich.  S.  C.  Law, 

335),  270. 

Garrett  v.  Garrett  (27  Ala.  687),  135. 
Garriguea,  Coleman  v.  (18  Barb.  N.  Y. 

60,  370. 

Garrison,  Pledger  v.  (42  Ark.  246),  487. 
Garrity,   McNamara  v.   (106  111.  384), 

465. 

Garst,  Arnold  v.  (16  R.  I.  4),  125. 
Garth,  Robinson  v.  (6  Ala.  204),  78,  368, 

369. 

,  Smith  v.  (32  Ala.  368),  90. 

Garthe  v.  Hart  (73  Cal.  541),  230. 
Gascoigne  v.  Thwing  (1  Vern.  366),  91. 
Gates,  Fraser  v.  (118  111.  99),  291n. 

,  Kuhns  v.  (92  Ind.  66),  293,  341. 

v.  McKee  (13  N.  Y.  232),  405. 

,  McNeil  v.  (41  Ark.  264),  267. 

Gatewood,  Schmidt  v.  (2  Rich.  S.  C.  Eq. 

162),  95,  439. 

Gatton,  Ruggles  v.  (50  111.  412),  198. 
Gaugain,  Whitworth  y.  (3  Hare,  416), 

62. 
Gault  v.  Brown  (48  N.  H.  183),  280. 

v.  Stormont  (51  Mich.  636),  384. 

Gaunt  v.  Hill  (1  Stark.  10),  371a. 
Gay  v.  State  (7  Kans.  246),  176. 

,  Wright  v.  (101  111.  233),  96. 

Geagan,  Manley  v.  (105  Mass.  445),  174. 
Gear,  Pinkham  v.  (3  N.  H.  163),  77. 
Geary  v.  Physic  (5  Barn.  &  C.  234),  352 


TABLE  OF  CASES. 


li 


Gebhart,  Estabrook  v.  (32  O.  St.  415), 

1066. 
Geddes,  Soanlan  /-.   (112   Mass.  115), 

385. 

Gee  v.  Gee  (2  Sneed,  Tenn.  395),  86. 
Gell,  Tomlinson  v.  (6  Ad.  &  E.  571), 

203. 
Gentry,  Davenport  v.  (9  B.  Mon.  Ky. 

427),  118. 
George   v.    Couhaim    (38   Minn.  338), 

384. 
Georgia  Co.    v.  Castleberry    (49   Ala. 

104),  164. 
Gerhart  v.   Peck    (42  Mo.   App.  644), 

370a. 
German  v.  Gabbald  (3  Binn.  Pa.  302), 

81. 
v.  Machin    (6  Paige,   N.  Y.   Ch. 

288),  463. 
German-American  Ins.  Co.  Bank  v.  (72 

Wise.  536),  298. 
Germon,  Vincent  v.   (11  Johns.  N.  Y. 

283),  138e. 
Getman,  Broad  well  v.  (2  Denio,  N.  Y. 

87).  289. 
v.  Getman   (1   Barb.   N.  Y.   Ch. 

499),  90. 
Gheen  v.  Osborne  (11  Heisk.  Tenn.  61), 

457a. 
Ghiselin,   Alexander    v.    (5   Gill,  Md. 

138),  147,  151,  294. 
Gibbons  v.  Bell  (45  Tex.  417),  26W, 

262. 
i?.  M'Casland  (1  Barn.  &  Aid.  690), 

137. 

Gibbs  v.  Blanchard  (15  Mich.  292),  197. 
,  Whittemore  v.  (24  N.  H.  484),  38, 

65,  231,  298. 
Gibson,  Coleman  v.  (1  Moo.  &  R.  168), 

316</,  333. 

v.  Foote  (40  Miss.  788),  90. 

v.  Holland  (L.  R.  1  C.  P.  1),  352a, 

864a. 

,  Valpy  v.  (4  C.  B.  837),  377,  382. 

Giese,  Elliott  v.  (7  Harr.  &  J.  Md.  457), 

191,  391. 
Gifford,  Richardson  v.  (1  Ad.  &  E.  62), 

39. 

r.  Willard  (55  Vt.  36),  118. 

Gignoux,  Agate  v.  (1  Rob.  N.  Y.  278), 

229. 
Gilbert  v.  Bulkley  (5  Conn.  262),  60, 

231 
,  Fleming  v.  (3  Johns.  N.  Y.  528), 

436. 

,  Goodnow  v.  (9  Mass.  510),  166. 

,  Ives  v.  (1  Root,  Conn.  89),  124. 

,  Jilson  v.  (26  Wise.  637),  276. 

,  Johnson  v.  (4  Hill,  N.  Y.  178), 

165. 

,  Judy  P.  (77  Tnd.  96),  476. 

r.  Lichtenberg  («.)8  Mich.  417),  334. 

v.  Svkes  (16  East,  150),  276. 


Gilchrist,  Abbott  v.  (38  Me.  260),  308, 

310. 
Gilday   v.    Watson    (2  Serg.  &  R.  Pa. 

407),  465. 
Giles,   Loughran   v.  (110  N.   C.   423), 

608. 
v.  Simonds   (15  Gray,  Mass.  441); 

27,  266. 
Gill  v.  Bicknell   (2  Cush.  Mass.  355), 

351,  353a,  369. 

,  Cumrnings  v.  (0  Ala.  562),  487. 

v.  Herrick  (111  Mass.  601),  199a. 

r.  Hewett  (7  Bush,  Ky.  10),  369. 

,  Noel's  Ex'r  v.  (84  Ky.  241),  441c. 

v.  Read  (65  Mo.  App.  246),  197. 

,    Tomlinson  v.  (Arab.   330),  163, 

211. 
Gillespie  v.  Battle  (15  Ala.  276),  121, 

1226. 

,  Mestaer  r.  (11  Ves.  621),  442. 

,  Sanders  r.  (59  N.  Y.  250),  161c. 

Gillet  ».  Maynard  (5  Johns.  N.  Y.  85), 

119. 
Gillctt  t'.  Campbell  (1  Denio,  N.  Y.  520), 

65. 
,  Mallony  v.  (21  N.  Y.  412),  171, 

214a. 
,  Mallory  v.  (23  Barb.  N.  Y.  610), 

204. 

,  Mallory  v.  (21  N.  Y.  412),  161c. 

Gillighan  v.  Boardman  (29  Me.  79),  191, 

391. 

Gilman  v.  Hill  (36  N.  H.  311 ),  314,  342a. 
v.  Kibler  (6  Humph.  Tenn.  19), 

391. 

Gilmanton,  Parish  v.  (11  N.  H.  298),  65. 
Giraud,  Hilton  v.  (1  De  G.  &  Smale, 

183),  258. 

v.  Richmond  (2  C.  B.  835),  283. 

Gist,  Lammott  v.   (2  Harr.  &  G.  Md. 

433),  55. 
Gittings,  Dugan  v.  (3  Gill,  Md.  138), 

216,  463,  465. 
,  Union  Banking  Co.  v.    (45  Md. 

181),  32a. 
Givens  v.  Calder  (2  Desaus.  S.  C.  Ch. 

171),  460,  483,  511. 
Clancy,  Johnston  v.  (4  Blackf .  Ind.  94), 

473,  47(5,  483. 
Glass  v.  Hulbert  (102  Mass.  24),  94,  94a, 

409,  4416, 441c,  444«,  446,  448a, 

450,   453,  457a,  461,  467,  470, 

475. 
Gleason  r.  Briggs  (28  Vt.  135,  193. 

v.  Drew  (9  Greenl.  Me.  79),  294. 

Glendenning,   Young  «>.   (6  Watts,  Pa. 

509),  467. 
Glengal  r.  Barnard  (1  Keen,  769),  354, 

370,  460. 
Glengall,  Thynne  v.  (2  H.  L.  C.  131), 

364,  460. 
Glenn,  Frieze  v.  (2  Md.  Ch.  Dec.  361), 

461. 


lii 


TABLE   OF   CASES. 


Glenn  v.  Lelinen  (54  Mo.  45),  199. 

v.  Rogers  (3  Md.  312),  128. 

Glen's  Falls  Ins.  Co.,  Pitney  v.  (65  N.  Y. 

6),  138/. 
Glossop,  Barnett  v.  (1  Bing.  N.  R.  633), 

511. 
Gobert,  Milledgeville  Laundry  Co.   v. 

(89  G  a.  473),  508. 
Goddard    v.  Binney   (115  Mass.  450), 

138e,  305,  316a. 
,  Coddington  v.    (16  Gray,  Mass. 

486),  351,  355. 
v.  Mockbee  (5  Cranch,  C.  C.  666), 

187. 
,   Salmon   Falls  Mfg.   Co.   v.    (14 

How.  U.  S.  446),  350,  362,  375, 

380,  383,  384. 
Goddard's  Estate,  In  re   (29  All.  Rep. 

Vt.  634),  172. 
Godden  v.  Pierson  (42  Ala.  370),  135, 

161c. 
Godolphin,  Child  v.  (1  Dick.  39),  498, 

505a,  515,  523,  525,  529. 
Godts  v.  Rose   (17  C.  B.   229),   319a, 

326. 
Godwin  v.  Francis  (L.  R.  5  C.  P.  295), 

352. 

Goerger,  Hoth  v.  (118  Mo.  556),  509. 
Goetz  v.   Foos   (14  Minn.   265),  161c, 

188.  l 

Goff,  Peck  v.  (25  Atl.  Rep.  R.  I.  690), 

187. 
Gold  v.  Phillips  (10  Johns.  N.  Y.  414), 

171. 
Goldbeck  v.  Kensington  Nat.  Bank  (147 

Pa.  St.  267),  2946. 

Goldshede  v.  Swan  (1  Exch.  154),  403. 
Goldsmith,  Connerat  o.  (6  Ga.  14),  156. 
Goldthwait,  Graves  v.  (153  Mass.  268), 

463. 

Goller  v.  Fett  (30  Cal.  482),  230. 
Gomeserra,  Borrett  v.  (Bunb.  94),  486. 
Gomez  r.  Tradesmen's  Bank  (4  Sandf. 

N.  Y.  102),  100. 
Gompertz,  Bluck  v.  (7  Exch.  862),  358, 

361. 
Gonzales    v.    Chartier    (63   Tex.   36), 

278a. 

Gooch  v.  Holmes  (41  Me.  523),  298. 
Good,  Pugh  v.   (3  Watts  &  S.  Pa.  56), 

226,  453,  467,  471,  475. 
Goode,  Blakeney  v.  (30  Ohio  St.  350), 

276a,  298. 
Goodhue  v.  Barn  well  (Rice,  S.  C.  Eq. 

198),  71,  74,  456. 
Goodland  v.  Le  Clair  (78  Wise.  176), 

298. 
Goodman  v.  Chase  (1  Barn.  &  Aid.  297), 

193. 

,  Cooch  v.  (2  Q.  B.  580),  9,  13. 

v.  Griffiths  (1  Hurlst.  &  N.  574), 

376. 
Goodnow  t-.  Bond  (59  N.  H.  150),  391. 


Goodnow,  Furbish  v.   (98  Mass.  297), 

169,  171,  214c. 

v.  Gilbert  (9  Mass.  510),  166. 

Goodrich,  Blood  v.  (9  Wend.  N.  Y.  68), 

411. 

,  Ham  v.  (33  N.  H.  32),  469. 

,  Ham  v.  (37  N.  H.  185),  126. 

v.  Johnson  (66  Ind.  259),  282a. 

v.  Nickols    (2  Root,  Conn.  498), 

134,  152. 

,  Wyman  v.  (26  Wise.  21),  165. 

Goodridge  v.  Dustin  (5  Met.  Mass.  363), 

75. 
,  Wood  v.  (6  Cush.  Mass.  117),  9, 

13. 
Goodright  v.  Mark  (4  Maule  &  S.  30), 

48. 

Goodspeed  v.  Fuller  (46  Me.  141),  159. 
Goodtitle  v.  Way  (1  T.  R.  735),  7. 
Goodwin  o.  Lyon   (4  Port.  Ala.  297), 

490,  493. 

,  People  v.  (5  N.  Y.  568),  26. 

Goom  v.  Aflalo  (6  Barn.  &  C.  117),  351. 
Gordon  v.  Collett  (102  N.  C.  532),  3466. 

v.  Gordon  (56  N.  H.  170),  230. 

v.  McCulloh  (66  Md.  245),  97. 

v.  Reynolds  (114  111.  118),  508. 

v.  Sims  (2  McCord,  S.  C.  Ch.  151), 

369. 
,  Thompson    v.    (3  Strobh.    S.  C. 

Law,  196),  275. 

v.  Tweedy  (71  Ala.  202),  116,  135. 

Gore,  Mills  i;.  (20  Pick.  Mass.  28),  297. 
Gorham  v.  Dodge  (122  111.  528),  465. 

v.  Fisher  (30  Vt.  428),  316d,  331. 

v.  Heiman  (90  Cal.  346),  262,  269. 

Goring  v.  Goring  (Yelv.  11,  note),  190. 
Gorman  v.  Boddy  (2  Carr.  &  K.  145), 

326. 

v.  Salisbury  (1  Vern.  240),  432. 

Gosbell  v.  Archer  (2  Ad.  &  E.  500), 

359,  369,  370a. 
Gosden  r.   Tucker   (6  Munf.  Va.   1), 

463. 
Goss  v.  Nugent   (5  Barn.  &  Ad.  58), 

409a,  414,  417,  434. 
Gothard  v.  Flynn  (25  Miss.  58),  64. 
Gottgetreu,  Cowdin  v.  (55  N.  Y.  650), 

199. 
Gottschalk  v.  Witter  (25  Ohio  St.  76), 

2826. 
Goucher  v.  Martin  (9  Watts,  Pa.  106), 

483. 
Gough,  Crane  v.  (4  Md.  316),  116. 

,  Edelen  t».  (6  Gill,  Md.  103),  391. 

Gould  v.  Banks   (8  Wend.  N.  Y.  562), 

298. 
,  Depeyster  v.  (2  Green,  N.  J.  Ch. 

474),  87. 
v.  Elgin  City  Banking  Co.   (136 

III.  60),  465 
,  Jackson  v.  (7  Wend.  N.  Y.  364), 

59. 


TABLE  OF  CASES. 


liii 


Gould   v.   Mansfield   (103  Mass.  408), 

263.  2tH5. 
v.  Moring  (28  Barb.  N.  Y.  444), 

406. 

,  Rogers  v.  (6  Hun,  N.  Y.  229),  327. 

,  Thompson  v.  (20  Pick.  Mass.  134), 

451. 

,  Whiting  P.  (2  Wise.  652),  95,  507u. 

Gouldiug,  Smith  v.  (6  Gush.  Mass.  154), 

270. 

Gowen  i;.  Klous  (101  Mass.  449),  373. 
Grabham,  Harvey  v.  (5  Ad.  &  E.  01), 

414,  419. 
Grace  v.  Denison  (114  Mass.  16),  376, 

385. 

Cradle  v.  Warner  (140  111.  123),  345«. 
Grafflin,  Myer  v.  (31  Md.  350),  198. 
Graf  ton  v.  Cummings  (99  U.  S.  100), 

350,  373,  375,  375a. 
Graf  ton  Bank  v.  Woodward  (5  N.  H. 

99),  411. 
Gragg,  Shattuck  v.  (23  Pick.  Mass.  88), 

77. 
Graham,  Clark  v.  (6  Wheat.  U.  S.  577), 

76. 
,  Cognie  v.  (2  Paige,  N.  Y.  177), 

611,  618,  533. 

-v.  Fretwell  (3  Man.  &  G.  368),  363. 

,  Hirtli  ».  (50  O.  St.  67),  256. 

,  Horsey  v.  (L.  R.  6  C.  P.  9),  263a, 

385. 
v.  Musson  (5  Bing.  N.  R.  603), 

363,  370a. 

,  Norris  r.  (33  Md.  66),  197. 

,  Royce  v.  (91  Ind.  420),  135. 

i;.  Theis  (47  Ga.  479),  468. 

,  Waterbury    v.  (4  Sandf.    N.  Y. 

215),  405. 
Gramling,  Kennedy  v.  (33  S.  C.  367), 

349,  376. 
Grand  Trunk   R.  R.,  Edwards  v.  (54 

Me.  105),  305. 

Granger,  Tiernan  v.  (65  111.  351),  283. 
Grant  v.  Craigmiles  (1  Bibb,  Ky.  203), 

456. 
v.  Fletcher  (6  Barn.  &  C.  436), 

351. 
v.  Grant  (63  Conn.  630),  141,  456, 

463 

r.  Levan  (4  Pa.  St.  393),  354. 

,  Nason  v.  (21  Me.  160),  60. 

».  Naylor  (4  Cranch,  U.  S,  224), 

373. 

v.  Pendery  (15  Kans.  *  236),  1666. 

v.  Shaw  (16  Mass.  341),  172. 

v.  Wolf  (34  Minn.  32),  198. 

Gratz  v.  Gratz  (4  Rawle,  Pa.  411),  15, 

78,  460,  483. 
Graves,  Boyd  v.  (4  Wheat.  U.  S.  613), 

75. 
,  Davidson  v.  (Riley,  S.  C.  Eq.  219), 

223 
v.  Dugan  (6  Dana,  Ky.  331),  89. 


Graves,  Dyer  v.  (37  Vt.  369),  142,  160. 

270. 

v.  Goldthwait  (153  Mass.  268),  463. 

v.  Graves  (45  N.  H.  323),  268. 

,  Jenison  v.  (2  Blackf.  Ind.  440),  93. 

,  Sanderson    v.   (L.   R.    10   Exch. 

234),  117«,  414. 

v.  Shulman  (59  Ala.  406),  204. 

Gray,  Barstow  v.  (3  Greenl.  Me.  409), 

:'65. 
,  Barton   v.   (57  Mich.  622),    279, 

415. 

,  Burton  v.  (L.  R.  8  Ch.  932),  626. 

,  Caperton  v.  (4  Yerg.  Tenn.  563), 

197,  370a. 

,  Chapman  ;;.  (15  Mass.  439),  33. 

v.  Gray  (2  J.  J.  Marsh.  Ky.  21), 

118. 
,  Hatton  w.  (2  Ch.  Cas.  164),  365, 

366. 

v.  Herman  (75  Wise.  453),  204. 

v.  Hill  (Ry.  &  M.  420),  119,  124. 

v.  Jenks  (3  Mas.  C.  C.  520),  65. 

v.  Palmer  (9  Cal.  616),  259,  260. 

v.  Payne   (16  Barb.  N.  Y.  277), 

320. 
v.  Smith  (L.  R.  43  Ch.  D.  208), 

262. 

,  Webster  v.  (37  Mich.  37),  463. 

,  Wyman  v.  (7  Harr.  &  J.  Md.  409), 

164,  391. 
Grayson  v.  Atkinson  (2  Ves.  Sr.  454), 

355 
Greasert,  AUard  v.  (61  N.  Y.  1),  314, 

327a,  335. 
Greasley,  Cloud  v.  (125  111.  313),  345a, 

467,  509. 

Greathouse,  Kraft  v.(l  Idaho,  254),  508. 
Greaves's  Case  •(!  Cromp.  &  J.  374, 

note),  138. 
Greeley-Burnham  Co.  v.  Capen  (23  Mo. 

App.  301),  351a. 

v.  Stilson  (27  Mich.  153),  26. 

Green   v.  Armstrong  (1   Denio,  N.  Y. 

550),  256. 

,  Ausley  v.  (82  Ga.  181),  369,  380. 

,  Brent  v.  (6  Leigh,  Va.  16),  264, 

265,  368,  369. 

,..  Brookins  (23  Mich.  48).  159. 

v.  Cresswell  (4  Jurist,  169),  161a, 

1616. 

,  Crockett  v.  (3  Del.  Ch.  466),  385. 

r.  Drummond  (3  Md.  71),  84.  86. 

,  Fishback  v.  (87  Ky.  107),  9Ua. 

v.   Green  (9  Cowen,   N.   Y.  46), 

122 

r.  Groves  (109  Ind.  519),  461,  476. 

v.  Hart  (1  Johns.  N.  Y.  580),  65. 

,  Hay  r.  (12  Cush.  Mass.  282),  186. 

,  Hodges  v.  (28  Vt.  358),  117. 

,  Humphreys  v.  (L.  R.  10  Q.  B.  D. 

148),  451. 
v.  Jones  (76  Me.  563),  451. 


liv 


TABLE   OF   CASES. 


Green,  Marshall  v.  (1  C.  P.  Div.  35), 

254o,  257a. 

v.  Merriam  ('28  Vt.  801),  31 86,  320. 

,  Moore  v.  (3  B.  Mon.  Ky.  407),  96. 

v.  North  Carolina  R.  H.  (77  N.  C. 

95),  122. 
v.  Penn.  Steel  Co.  (75  Md.  109), 

282. 

v.  Randal  (51  Vt.  67),  269. 

v.  Saddington    (7  El.  &  B.  503), 

117,  117a. 
v.  Vardiman  (2  Blackf.  Ind.  324), 

233,  270. 
,  Wilcox  Silver  Plate  Co.  v.  (72 

N.  Y.  18),  136, 316«,  3%,  327a. 
Greene  v.  Burton  (59  Vt.  423),  198. 
v.  Cramer  (2  Con.  &  L.  54),  216, 

21G«,  370«. 

v.  Harris  (9  R.  I.  401),  276a. 

v.  Latcham    (2  Col.  Ct.  of  App. 

416),  197. 
,  Niagara  Ins.  Co.  v.  (77  Ind.  590), 

278a. 

,  Smalley  i;.  (52  Iowa,  241),  289. 

,  Tolley  v.  (2  Saudf.  N.  Y.  Ch.  91), 

276. 
Greenhood,  Wakefield  v.  (29  Cal.  597), 

174. 
Greenlee  v.  Greenlee   (22  Pa.  St.  225), 

448,  476,  493. 
,  Tate  e.  (4  Dev.  N.  C.  149),  78, 

264. 
Greenlees    v.    Roche    (48  Kans.  603), 

471. 
Greenly,  Olmstead  v.  (18  Johns.  N.  Y. 

12),  202. 
Greenough,  Barrow  v.  (3  Ves.  Jr.  152), 

94,  98,  109. 
Green's   Farms    Soc'y  v.    Staples    (23 

Conn.  544),  187. 
Greenwalt  v.  Horner  (6  Serg.  &  R.  Pa. 

71),  465. 
Greenwood  v.  Law  (55  N.  J.  Law,  168), 

297,  298. 

Greer  v.  Greer  (18  Me.  16),  118. 
,  Smith  v.  (3  Humph.  Tenn.  118), 

223. 

Gregg,  Reinhart  v.  (8  Wash.  191),  3186. 
Gregory  v.  Logan  (7  Blackf.  Ind.  112), 

391. 
v.  Mighall  (18  Ves.  328),  476,  483, 

484. 

,  Neal  v.  (19  Fla.  356),  461. 

Gregson  o.  Ruck  (4  Q.  B.  737),  351. 
Greider's  Appeal  (5  Pa.  St.  422),  43, 46. 
Grey,  Sutton  v.  (L.  R.  1  Q.  B.  D.  1894, 

285),  213. 
Griffey,  McConahey  v.  (82  Iowa,  564), 

275. 
Griffin,  Ex  parte  (10  Chicago  Leg.  News, 

395),  259,  26 1/. 
,  Albea  r.  (2  Dev.  &  B.  N.  C.  Eq. 

9),  448,  490. 


Griffin  v.  Coffey  (9  B.  Mon.  Ky.  452), 

229,  267. 

v.  Derby  (5  Greenl.  Me.  476),  157. 

,  Lee  v.  (I  Best  &   S.   272),  308, 

809a. 
,  Mitchell  v.  (58  Ind.  559),   1666, 

200a. 
v.  Rembert  (2  S.  C.  410),   345a, 

373. 

,  Vawter  v.  (40  Ind.  593),  298. 

,  Videau  v.  (21  Cal.  389),  126. 

Griffith,  Morgan  v.  (L.  R.  6  Exch.  70), 

117,  117a,  233. 
Griffiths,  Goodman  v.  (1  Hurlst.  &  N. 

574), 376. 
Griffits,  Brantom  v.  (1  C.  P.  Div.  349), 

254. 
Grigsby  v.  Combs  (21  S.  W.  Rep.  Ky. 

37),  75. 
,  Yerby  v.  (9  Leigh,  Va.  387),  357, 

370a. 

Grimes  v.  Butts  (65  111.  347),  69. 
v.   Hamilton    County    (37    Iowa, 

290),  346. 

,  Mastin  v.  (88  Mo.  478),  366. 

•,  Shreve  v.  (4  Litt.  Ky.  220),  119. 


Grimman  v.  Legge  (8  Barn.  &  C.  324), 

55 
Grinnell,  Richards  v.  (63  Iowa,  44),  259, 

262. 

Grippen  v.  Benham  (5  Wash.  589),  116 
Griswold,  Bull  v.  (19  111.  631),  246. 
v.   Griswold  (7  Lans.  N.  Y.  72), 

193. 
,  McCafferty  v.  (99  Pa.  St.  270), 

119,  226. 

Groce  v.  Jenkins  (28  S.  C.  172),  505. 
Groover  v.  Warfield  (50  Ga.  644),  363. 
Grosholz,  Warnick  v.  (3  Grant,  Pa.  234), 

199. 

Gross,  Fishbeck  v.  (112  111.  208),  94. 
Grosser,  Hill  v.  (59  N.  H.  613),  122. 
Groton,  Esmay  v.  (18  111.  463),  499. 
Grout,  Gardner  v.  (2  C.  B.  N.  s.  340), 

334 
Grove,  Artz  v.  (21  Md.  456),  498. 

,  Furnivall  v.  (8  C.  B.  N.  s.  4%),  55. 


Grover  v.  Buck  (34  Mich.  519),  229. 
,  Towne   v.   (9  Pick.   Mass.  3C6), 

177. 
Groves  v.  Buck  (3  Maule  &  S.  178), 

301. 

v.  Cook  (88  Ind.  169),  280,  285. 

,  Green  v.  (109  Ind.  619),  461,  476. 

Grubs,  Gully  v.    (1  J.  J.  Marsh.  Ky. 

387),  289. 

Grumley  v.  Webb  (48  Mo.  562),  228. 
Gryle  v.  Gryle  (2  Atk.  177),  355. 
Guaranty  Co.,  Jones  v.  (101  U.  S.  622), 

Ula. 

Guest  v.  Opdyke  (31  N.  J.  L.  552),  20. 
Guggenheim    v.    Rosenfeld    (9    Baxt. 

Tenn.  653),  213. 


TABLE   OF   CASES. 


IV 


Guice,  Thornton  v.  (73  Ala.  321),  193. 
Gull  v.  Lindsay  (4  Exeh.  45),  193,  203. 
Gulley  v.  Macy  (84  N.  C.  434),  460. 
Gully  v.  Grubs    (1  J.  J.   Marsh.  Ky. 

387),  289. 

Gump  r.  Halberstadt  (15  Ore.  356),  189. 
Gundelfinger,  Dinkel  v.  (35  Mo.  172), 

518. 
Gunn,  Pawle  v.  (4  Bing.  N.  C.  445), 

116,  296. 
Gunning,  Fodmore  v.  (1  Sim.  644),  94, 

107. 
Gunnison,  King  v.  (4  Pa.  St.  171),  264, 

265. 
Gunter  v.  Halsey  (2  Amb.  586),  448, 

457,  498. 

Gupton  v.  Gupton  (47  Mo.  37),  463. 
Gurhn  v.  Richardson  (128  III.  178),  96. 
Gurney,  Patten  v.  (17  Mass.  182),  181. 
Gustavus,  Koplitz  v.  (48  Wise.  4«),  38. 
Guthrie  v.  Anderson   (47  Kans.  383), 

365,  461. 

v.  Anderson  (49  Kans.  416),  365. 

Guy,  Halleck  v.  (9  Cal.  181),  265. 
Guynn  v.  McCauley  (32  Ark.  97),  467, 

508. 
Gwaltney    v.  Wheeler  (26  Ind.  415), 

2610,  268. 
Gwathney  v.  Cason  (74  N.  C.  6),  353, 

384. 
Gwyn  i;.  Wellborn  (1  Dev.  &  B.  N.  C. 

Law,  313),  42,  43. 


H. 

Haas,  Faust  v.  (73  Pa.  St.  295),  95. 

,  Tompkins  v.  (2  Pa.  St.  74),  335. 

Hackett  v.  Reynolds  (4  R.  I.  512),  64. 
Uackworth  v.  Zeitinger  (48  Mo.  App. 

32),  508. 
Hagadorn  v.  Lumber  Co.  (81  Mich.  56), 

197. 

Hagan,  Sherrill  v.  (92  N.  C.  345),  270. 
Hager,  Orrman  v.  (3  New  Mex.  331), 

305. 

Haggard,  Patmor  v.  (78  111.  607),  391. 
Haggerty  v.  Johnson  (48  Ind.  41),  193. 
Hagler,  Jones  v.  (95  Ala.  529),  535. 
Haigh  v.  Brooks  (10  Ad.  &  E.  309),  403. 
v.  Kaye  (L.  R.  7  Ch.  469),  94,  95, 

100,  441a. 
Haines  v.  Haines  (6  Md.  435),  481. 

,  Maxwell  v.  (41  Me.  559),  1666. 

v.  McGlone  (44  Ark.  79),  476. 

,  Sprague  v.  (68  Tex.  215),  229. 

Hairston  v.  Jaudon  (42  Miss.  380),  122. 
Hake  v.  Solomon  (62  Midi.  377),  198. 
,  Struble  v  (14  Brad.  111.  App.  Ct. 

546),  1666. 

Hakes,  Pierce  v.  (23  Pa.  St.  242),  126. 
Halberstadt,    Gump  v.  (15  Ore.   356), 

189. 


Halbut  v.  Forrest  City  (34  Ark.  246), 

39. 

Hale,  Ballou  v.  (47  N.  H.  347),  71. 
,  Forster  v.   (3  Ves.  Jr.  696),  99, 

105,  108,  260,  455,  492. 
,  Forster  v.  (6  Ves.  308),  82, 97, 98, 

99,  259,  260. 
v.  Hale  (19  S.  E.  Rep.  Va.  739), 

263. 

v.  Henrie  (2  Watts,  Pa.  144),  259. 

,  Spencer    v.    (30  Vt.  314),  327a, 

333. 

v.  Stuart  (76  Mo.  20),  126. 

Hales  v.  Van  Berchem  (2  Vern.  617), 

461. 

Haley,  Burke  v.  (2  Gilm.  111.  614),  508. 
Halfpenny  v.  Ballet  (2  Vern.  373),  445. 
,  Mallet  v.  (1  Eq.   Cas.   Abr.  20), 

445. 
Hall,  Brown  v.   (5  Lans..  N.  Y.  177), 

3186. 

v.  Chaffee  (13  Vt.  150),  28. 

,  Clark  v.  (6  Halst.  N.  J.  78),  206. 

,  Cobb  v.  (29  Vt,  510),  122. 

v.  Farmer  (2  N.  Y.  553),  406. 

v.  Hall  (2  McCord,  S.  C.  Ch.  269), 

230,  454. 

v.  Hall   (1  Gill,  Md.  383),  518. 

,  Hamill  v.  (35  Pac.  Rep.  Col.  927), 

187,  508. 

,  Hand  v.  (2  Ex.  Div.  355),  39. 

,  Huff  ».  (56  Mich.  456),  117. 

o.  Livingston  (3  Del.  Ch.  348),  81. 

v.  McDuff  (24  Me.  311 ),  60,  64. 

,  M'Farland  v.  (3  Watts,  Pa.  37), 

466 

,  Mason  v.  (30  Ala.  599),  1666. 

v.  Peoria  and  Eastern  R.  R.  (143 

111.  163),  465. 

,  Simpson  v.  (47  Conn.  417),  135. 

v.  Solomon  (61  Conn.  476),  269. 

v.  Soule  (11  Mich.  494),  135,  385. 

,  Stearns  v.  (9  Cush.  Mass.  31),  411, 

425. 

,  Thompson  v.  (16  Ala.  204),  391. 

v.  Wallace  (88  Cal.  434),  370«. 

v.  Wood  (4  Chand.  Wise.  36),  197. 

v.  Young  (37  N.  H.  134),  86. 

Hallack,  Wagner  v.  (3  Col.  176),  198. 
Halleck  v.  Guy  (9  Cal.  181),  265. 
Hallen  v.  Runder  (1  Cromp.  M.  &  R. 

266),  234. 
Hallenbeck  v.  Cochran  (20  Hun,  N.  Y. 

416),  319,  343. 

Halsa  v.  Halsa  (8  Mo.  303),  391. 
Halsey,  Gunter  v.  (2  Amb.  686),  448, 

457,  498. 
Halstead   v.   Francis   (31    Mich.    113), 

166rt. 
Ham  r.  Goodrich  (33  N.  H.  32),  469. 

v.  Goodrich  (37  N.  H.  185),  126. 

Hamar  r.  Alexander  (2  Bos.  &  P.  N 

R.  244),  186. 


Ivi 


TABLE  OF  CASES. 


Hambell  v.  Hamilton  (3  Dana,  Ky .  501 ) , 

118,  124. 

Hameru.  Sidway  (124  N.  Y.  538),  508. 
Hamer-on  v.  Stead  (3  Barn.  &  C.  478), 

50. 
Hamilton  v.  Buchanan  (112  N.  C.  463), 

96. 
,  Dale  v.  (5  Hare,  369),  85,  90,  96, 

260,261c,  26  le,  455. 

,  Forbes  v.  (2  Tyler,  Vt.  356),  233. 

,  Hambell  v.  (3   Dana,   Ky.   501), 

118,  124. 
v.  Jones  (3  Gill  &  J.  Md.  127),  448, 

454,  488. 

,  Lowe  v.  (132  Ind.  406),  2146,  534. 

,  Smith  o.  (20  Mich.  433),  75. 

v.  Terry  (11  C.  B.  954),  267. 

Hamilton  Co.,  Grimes  v.  (37  Iowa,  290), 

346. 

v.  Moore  (25  Fed.  Rep.  4),  28. 

Hammersly  v.  De  Biel  (12  Clark  &  F. 

45),  224,  459,  459a,  460a. 
Hammon  v.  Douglas  (50  Mo.  434),  38. 
Hammond  v.  Bush  (8  Abb.  N.  Y.  Pr. 

166),  64. 

v.  Dean  (8  Baxter,  Tenu.  193),  38. 

,  Thomas  v.  (47  Tex.  42),  278«  509. 

v.  Winchester  (82  Ala.  470),  28. 

Hampton,  Coffman  v.  (2  Watts  &  S.  Pa. 

377),  335. 
,  Holloway  v.  (4  B.  Mon.  Ky.  415), 

283,  285,  289. 

v.  Spencer  (2  Vern.  88),  101. 

Hanchett,  White  v.  (21  Wise.  415),  276. 
Hancock,  Dana  v.  (30  Vt.  616),  411. 
,  Vaughan  v.    (3  C.  B.  766),  141, 

233,  254. 

,  Wooldridge  v.  (70  Tex.  18),  474. 

Hand  v.  Hall  (2  Ex.  Div.  355),  39. 
Handley,  Cannon  v.  (72  Cal.  133),  354a. 

,  Villers  v.  (2  Wils.  49),  506. 

Handy,  Vose  v.  (2  Greenl.  Me.  322),  65. 
Banff  v.  Howard  (3  Jones,  N.  C.  Eq. 

44),  259. 
Hanford  i\  Higgins  (1  Bosw.  N.  Y.  441), 

197. 
,  Quin  ».  (1  Hill,  N.  Y.  82),  174, 

187,  504. 

Hankin,  Hicks  v.  (4  Esp.  114),  351. 
Hankins  v.  Baker  (46  N.  Y.  666),  319a, 

370a. 

Hanlon  v.  Wilson  (10  Neb.  138),  467. 
Hanna,  King  v.  (9  B.  Mon.  Ky.  369), 

1226,  275. 

Hanrick,  Barrell  v.  (42  Ala.  60),  107. 
Hansbury,  Charnley  v.  (14  Pa.  St.  16), 

493. 
Hansford,  Fugate  v.  (3  Litt.  Ky.  262), 

354a,  379. 
Hanson  r.  Barnes  (3  Gill  &  J.  Md.  359), 

346. 

,  Johnson  v.  (6  Ala.  351),  121,  451. 

v.  Marsh  (40  Minn.  1),  142,376. 


Hanson  v.  Roter  (64  Wise.  622),  242 

303. 
Haralson,  Knox  v.  (2  Tenn.  Ch.  232), 

255. 

Harbold  v.  Kuster  (44  Pa.  St.  392),  236. 
Hardeman,  Evans  v.  (15  Tex.  480),  268. 
Harden  o .  Hays  (9  Pa.  St.  151),  119, 

490. 
Hardenbergh,  Frear  v.  (5  Johns.  N.  Y. 

272),  233. 
Harder  v.  Harder  (2  Sandf.  N.  Y.  Ch. 

217),  89,  263,  487. 
,  Jackson  v.  (4  Johns.  N.  Y.  202), 

68. 
Hardesty  v.  Jones  (10  Gill  &  J.  Md. 

404),  188,289,461. 
Harding,  Singstack  v.(  4  Harr.  &  J.  Md. 

186),  369. 

,  Smart  v.  (15  C.  B.  652),  117n,  231. 

Hardman  v.  Bradley   (85  111.  162),  198. 

,  Weatherly  v.  (68  Ga.  592),  164. 

,  Wilhelm  o.  (13  Md.  140),  276. 

Hardy,  Blood  v.  (15  Me.  61),  370a. 

,  Nelson  v.  (7  Ind.  364),  187. 

Hargrave  v.  King  (5  Ired.  N.   C.  Eq. 

430),  94. 
Hargraves,  Townsend   v.    (118    Mass. 

325),  115,  138e,  316c,  319a,  337. 
Hargreaves  v.  Parsons  (13  Mees.  &  W. 

561),  188. 
,  Pawelski  v.  (47  N.  J.  Law,  334), 

302. 
Hargrove  v.  Adcock  (111  N.  C.  166), 

370a. 
Hargroves  v.  Cooke  (15  Ga.  321),  191, 

321. 

Harlan,  Carter  v.  (6  Md.  20),  28. 
Harman  v.  Reeve   (18  C.  B.  587),  313, 

3346. 
Harnett  v.  Yeilding  (2  Schoales  &  L. 

549),  385,  492. 
Harnish,  Eshleman  v.  (76  Pa.  St.  97), 

198,  199,  199a. 
Harper,  Duke  v.  (6  Yerg.  Tenn.  280),  38. 

v.  Harper  (5  Bush,  Ky.  176),  94. 

v.  Harper  (57  Ind.  347),  276. 

v.  Spainhour  (64  N.  C.  629),  64. 

Harrell,  Brown  ?;.  (40  Ark.  429),  195. 
Harrington,   Frank  v.   (36  Barb.  N.  Y. 

415),  256. 
v.  Rich.  (6  Vt.  666),  190,  193,  196, 

212 

,  Rucker  v.  (52  Mo.  App.  481 ),  411. 

Harris  v.   Crenshaw  (3  Rand.  Va.  14), 

467. 

,  Evans  v.  (2  Ves.  &  B.  3fil),  518. 

v.  Frank  (81  Cal.  280),  197,  508. 

,  Greene  r.  (9  R,  I.  401),  216a. 

v.  Horwell  (Gilb.  Eq.  11),  94. 

v.  Huntbach  (1  Burr.  71),  156. 

v.  Knickerbacker  (5  Wend.  N.  Y. 

638),  456,  471,  483,  484,  498, 

501,518. 


TABLE   OF  CASES. 


Ivii 


Harris,  Lowe  v.  (17  S.  E.  Rep.  N.  C. 

639),  885. 
,  Martin  v.  (26  S.  W.  Rep.  Tex.  91), 

69. 

,  Morris  v.  (9  Gill,  Md.  19),  467. 

,  Moulton  v.  (94  Cal.  420),  487. 

v.  Powers  (57  Ala.  13!)),  255a. 

,  Handle  i;.   (0  Yerg.  Tenn.  508), 

205. 

v.  Richey  (56  Pa.  St.  395),  467. 

f.  Rounsevel  (61  N.  H.  250),  341. 

,  Scott  v.  (113  III.  447),  94. 

,  Sellack  v.  (5  Vin.  Ab.  621),  442. 

,  Simpson  v.  (21  Nev.  353),  197. 

,  Smith  v.  (2  Stark.  47),  183,  185. 

,  Tisdale   v.   (20  Pick.   Mass.   13), 

29do. 
v.  Wall  (1  Exch.  122),  Appendix, 

p.  583. 

v.  Young  (40  Ga.  65),  1666,  193. 

Mfg.  Co.,  Banks  v.  (20  Fed.  Rep. 

667),  345a. 
Photo.  Co.  v.  Fisher  (81  Mich.  136), 

505. 
Harrison  v.  Cage  (1  Ld.  Rayni.  386), 

215,  216a. 

,  Cunliffe  n.  (6  Exch.  903),  333. 

,  Floyd  v.  (4  Bibb,  Ky.  476),  212. 

v.  Harrison  (1  Md.  Ch.  Dec.  331), 

487,  608,  619. 
,  Jenkins   v.    (66    Ala.   345),   354, 

3546. 
v.  Sawtel  (10  Johns.  N.  Y.  242), 

158,  161c. 

,  Wallis  v.  (4  Mees.  &  W.  538),  25. 

Harrold,   Anderson   u.  (10  Ohio,  399), 

355. 
Harrop,   Buckmaster  r.   (7  Ves.  341), 

369,  453,  464,  457,  475. 
,  Buckmaster  v.  (13  Ves.  450),  353, 

3(57,  463. 

Harahaw,  Combs  v.  (63  N.  C.  198),  155. 
Hart  v.  Bush  (El.  B.  &  E.  494).  3276. 
v.  Carroll  (85  Pa.   St.  508),  344, 

364,  448,  493. 
,  Dock  v.  (1  Watts  &  S.  Pa.  172), 

142,  150. 

,  Garthe  ».  (73  Cal.  541),  230. 

,  Green  v.  (1  Johns.  N.  Y.  580),  65. 

,  Johnson  v.  (3  Johns.  N.  Y.  Cas. 

322),  65. 

v.  MeClellan  (41  Ala.  261),  507. 

v.  Mills  (15  Mees.  &  W.  85),  335. 

,  Moore  v.  (1  Vern.  110),  354a. 

r.  Sattley  (3  Camp.  528),  327a. 

,  Stoddard  v.  (23  N.  Y.  556),  267. 

v.  Tallmadge  (2  Day,  Conn.  381), 

181. 

,  Wilson  v.  (1  Taunt.  295),  364. 

v.  Woods  (7  Blackf.  Ind.  568),  369. 

Hartel,    Dougherty    v.  (91  Mo.    161), 

491n. 
Hartley  v.  Varner  (88  III.  661),  198. 


Hartley  v.  Wharton  (11  Ad.  &  E.  934), 

Appendix,  p.  583. 

Hartmann,  Meyer  v.  (72  111.  442),  1666. 
Hartnoll,  Cripps  v.  (2  Best  &  S.  697), 

1616. 
Hartshorn,  Penniman  v.  (13  Mass.  87), 

357,  358,  365. 
Hartwell,  Long  i-.  (34  N.  J.  L.  116),  425. 

u.  Young  (67  Hun,  N.  Y.  472),  118. 

Harvey  v.  Grabham  (5  Ad.  &  E.  61), 

414,419. 
,  Huntington  v.  (4  Conn.  124),  164, 

197. 

,  Knoll  v.  (19  Wise.  99),  482. 

,  Peabody  v.   (4  Conn.   11«),  164, 

197. 
v.  Pennypacker  (4  Del.  Ch.  445), 

90. 

v.  Stevens  (43  Vt.  653),  373,  375a. 

Harwell,  Robson  v.  (6  Ga.  689),  113, 147, 

151. 
Harwood,  Wilton  v.  (23  Me.  131),  449, 

487. 
Hasbrotick,  Seaman  v.  (35  Barb.  N.  Y. 

151),  1666. 

Haseltine,  Otis  D.  (27  Cal.  80),  406. 
Haskins,  Cabot  v.  (3  Pick.  Mass.  83), 

289,  290,  367. 
Est.,  Williams  v.  (29  Atl.  Rep.  Vt 

371),  82. 
Haslet  v.  Haslet  (6  Watts,  Pa.  464), 

473,  474. 
Haslock  v.  Fergusson  (7  Ad.  &  E.  86), 

1846,  185,  Appendix,  p.  583. 
Ilassinger  v.  Newman  (83  Ind.  124),  166, 

212 

Hastie,  Couturier  v.  (8  Exch.  56),  213. 
Hastings,  Bruce  v.  (41  Vt  380),  261<7. 
,  Cave  v.  (L.  R.  7  Q.  B.  D.  125), 

3466,  348. 
c.  Weber  (142  Mass.  232),  345a, 

371a. 
Hatcher  v.  Robertson  (4  Strobh.  S.  C. 

Eq.  179),  216. 

Hatchett,  Hughes  v.  (55  Ala.  639),  129. 
Hatton  v.  Gray  (2  Ch.  Cas.  164),  366, 

366. 
Haugh,  Atwater  v.  (29  Conn.  608),  305, 

310. 

v.  Blythe  (20  Ind.  24),  289. 

Haughabaugh  v.  Honald  ( 1  Tread.  S.  C. 

90),  78. 
Haumesser,   Roehl   v.  (114   Ind.   311), 

266,  346a,  370«. 
Hausman  v.  Nye  (62  Ind.  485)    3276, 

884o. 
Haussman  v.  Burnham  (69  Conn.  117), 

116. 
Haven  v.  Adams  (4  Allen,  Mass.  80), 

13. 

Haverfield,  Legh  v.  (5  Ves.  452),  601. 
Haverly  v.  Mercur    (78  Pa.   St.  2571, 

109a. 


Iviii 


TABLE   OF  CASES.    . 


Haviland  v.  Sammis  (62  Conn.  44),  117. 
Hawes  v.  Armstrong  (1   Bing.  N.  K. 

761),  388,  399,  404. 

v.  Forster  (1  Moo.  &  R.  368),  351. 

llawey,  McKinney  v.  (38  Minn.  18), 

122. 

Hawkes,  Sparrow  v.  (2  Esp.  504),  53. 
Hawkins  v.  Cliace  (19  Pick.  Mass.  502), 

346,  357,  370u. 
v.  Holmes  (1  P.  Wms.  770),  355, 

460. 
v.  King  (2  A.  K.  Marsh.  Ky.  548), 

465. 

v.  McGroarty  (110  Mo.  546),  370a. 

,  Townsend  v.  (45  Mo.  286),  448. 

Hawks,  Arbuckle  v.  (1  Comyns,  354), 

296. 
Hawley  v.  Moody   (24  Vt.  603),  118, 

122. 

,  Patterson  v.  (33  Neb.  440),  269. 

Hay  v.  Green  (12  Cush.  Mass.  282),  186. 
Haycraft  v.  Creasy  (2  East,  92),  181. 
Hayden,  Rose  v.  (35  Kans.  106),  96. 
Hayes  v.  Burkam  (51  Ind.  130),  94a,  155. 
,  Buttemere  v.  (5  Mees.  &  W.  456), 

54,231,  511,518. 

,  Emmel  v.  (102  Mo.  186),  478. 

v.  Jackson  (159  Mass.  451),  3816. 

v.  Livingston  (34  Mich.  384),  457a. 

Hayman,  Anderson  v.  (1  H.  Bl.  120), 

197. 
Haynes,  Hickman  v.  (L.  R.  10  C.  P. 

598),  426. 

v.  Nice  (100  Mass.  327),  138c. 

Hays,  Calhoun  v.  (8  Watts  &  S.  Pa. 

127),  74. 

,  Harden  v.  (9  Pa.  St.  151),  119,490. 

,  Henderson  v.  (2  Watts,  Pa.  148), 

451. 
v.  Kansas  City  R.  R.  (108  Mo.  554), 

487. 
,  Movan   v.  (1  Johns.   N.  Y.   Ch. 

339),  98. 
v.  Richardson  (1   Gill  &  J.   Md. 

366),  29. 

Hayt,  Hunt  v.  (10  Col.  278),  465. 
Hayward,  Howe  v.  (108  Mass.  54),  3426. 
Haywood,  MacLin  v.  (90  Tenn.  195), 

385. 
Hazard  v.  Day  (14  Allen,  Mass.  487), 

352,  37 la. 

,  Ives  v.  (4  R.  I.  14),  366,  376. 

Hazelrigg,  Fall  o.  (45  Ind.  576),  272. 
Hazeltine  v.  Wilson  (55  N.  J.  Law,  250), 

199. 

Hazen  v.  Barnett  (50  Mo.  506),  72. 
v.  Bearden  (4  Sneed,  Tenn.  48), 

199 

,  Brown' ».  (11  Mich.  219),  188. 

Hazewell  v.  Coursen  (36  N.  Y.  Sup'r  Ct, 

459),  82. 
Hazlerigg,    Parks    v.   (7   Blackf.    Ind. 

536),  9. 


Hazleton,  Gardner  v.  (121  Mass.  494), 

384. 
Heacock  v.  Coatesworth  (Clarke,  N.  Y. 

Ch.  84),  96. 
Head  v.  Baldrey  (6  Ad.  &  E.  468),  151. 

,  Dant  v.  (90  Ky.  255),  289. 

Headlee,  Simmons  v.  (94  Mo.  482),  478. 
Headrick  v.  Wiseheart  (57  Ind.  129), 

164. 
Heald,  Bracegirdle  v.  (1  Barn.  &  Aid. 

722),  1356,  286,  291. 
Heaney,  Hodgins  v.  (15  Minn.  185),  204. 
Heard  v.  Pilley  (L.  R.  4  Ch.  548),  96. 

,  Soggins  v.  (31  Miss.  426),  94,  278a. 

Hearne   v.   Chadbourne  (65  Me.  302), 

291 

Heath  v.  Heath  (31  Wise.  223),  276. 
Heaton,  Parker  v.  (55  Ind.  1),  193,  457. 
Heavenrich,    Wilkinson    v.    (58  Mich. 

574),  364. 
Hecht,  Hunt  v.   (8  Exch.  814),  316a, 

316rf,  316/;  321,  329,  331. 
Hedges,  O'Herlihy  v.  (1  Schoales  &  L. 

123),  451. 

v.  Strong  (3  Oreg.  18),  278a. 

Heelis,  Emmerson  v.  (2  Taunt.  38),  238, 

335,  369. 
Heermance  v.  Taylor  (14  Hun,  N.  Y. 

149),  316a. 

Heffron  v.  Armsby  (61  Mich.  505),  370a. 
Heflin  v.  Bingham  (56  Ala.  566),  255a. 

v.  Milton  (69  Ala.  354),  275. 

Heft  v.  McGill  (3  Pa.  St.  256),  490. 
Hegeman,  Ross  v.  (2  Edw.  N.  Y.  Ch. 

373),  85. 
Heideman  v.  Wolfstein   (12  Mo.  App. 

366),  352a,  354a,  380. 
Heidt,  Lester  v.  (86  Ga.  226),  384. 
Heilman  v.  Weinman  (139  Pa.  St.  143), 

127. 
Heiman,  Gorham  v.  (90  Cal.  346),  262, 

269. 

Heiney,  Whitesell  v.  (58  Ind.  108),  188. 
Heisley  v.  Swanstrom   (40  Minn.  196), 

411. 

Hellberg,  Docter  v.  (65  Wise.  415).  365. 
Heilman,  Caulkins  v.  (14  Hun,  N.  Y. 

330),  327. 

Helm  v.  Logan  (4  Bibb,  Ky.  78),  271. 
Helms  v.  Kearns  (40  Ind.  124).  1666. 
Heltz;.  Smith  (74  Iowa,  667),  200a. 
Hemenway,  Bailey  v.  (147  Mass.  326), 

86. 
Heming,  Cherry  v.  (4  Exch.  631),  9, 

288. 
Henderson  v.  Barnewall  (1  Younge  & 

J.  387),  369. 

v.  Beard  (51  Ark.  483),  17,  354a. 

v.  Hays  (2  Watts,  Pa.  148),  451. 

v.  Herrod  ( 10  Smedes  &  M.  Miss. 

631),  65. 
r.  Hoke  (1  Dev.  &  B.  N.  C.  Eq. 

119),  92. 


TABLE   OF  CASES. 


lix 


Henderson  v.   Hudson   (1   Munf.   Va. 

510),  147,  151,  259, 261O1,  261?. 

v.  Johnson  (6  Ga.  390),  391. 

,  Lingan  v.  (1  Bland,  Md.  Ch.  236), 

508. 
,  Ruffey  v.  (21  L.  J.  Q.  B.  49),  24, 

25. 
Hendrick,  Phelps  v.  (105  Mass.   106), 

294. 
Hendricks,  Manufacturing  Co.  v.  (106 

N.  C.  485),  385. 
,  Stanley  v.  (13  Ired.  N.  C.  86). 

187. 
Hendrickson,  St.  John  v.  (81  Ind.  350), 

183. 

Henke,  Lenfers  v.  (73  111.  405),  230. 
Henkel,  Billin  v.  (9  Col.  394),  316a. 
Hennon,  Gray  v.  (75  Wise.  453),  204. 
Henrie,  Hale  v.  (2  Watts,  Pa.  144),  259. 
Henrietta  Vineyard  Co.,  Eshleman  v. 

(36  Pac.  Rep.  Cal.  775),  467. 
Henry   v.   Henry   (27   Ohio   St    121), 

215a.    * 

,  Lang  ».  (54  N.  H.  57),  1666,  212. 

v.  Root  (33  N.  Y.  526),  354a. 

v.  Wells  (48  Ark.  485),  451. 

,  Winn  v.  (84  Ky.  48),  365,  385. 

Henscliel  v.  Mamero  ( 120  III.  620),  94. 
Hentges,  Wilsom  v.  (29  Minn.  102),  165. 
Herman,   McTighe   v.   (42  Ark.  285), 

199. 
Hern,  McGovero   v.   (153  Mass.  308), 

373. 
Herndon,    Everman    v.   (11   So.  Rep. 

Miss.  652),  348. 
Herrick,  Field  v.  (14  Brad.   111.  App. 

181),  38. 

,  Gill  v.  (Ill  Mass.  601),  199a. 

,  Morrison  i;.   (130  111.  631),  483, 

487. 

Herrin  v.  Butters  (20  Me.  122),  281a. 
Herring,  Walker  v.  (21  Grat.  Va.  678), 

261rf,  261.9,  369. 
Herrington,   Wolford    v.    (74   Pa.    St. 

311),  94,  94a. 
,  Wolford  v.   (86  Pa.  St.  39),  94a, 

96a. 
Herrod,  Henderson  v.  (10  Smedes  &  M. 

Miss.  631),  65. 
Hershman  v.  Pascal  (4  Ind.  App.  Ct. 

330),  463. 
Hertle  v.  McDonald  (2  Md.  Ch.  128), 

90. 

Herzog  v.  Herzog  (34  Pa.  St.  418),  226. 
Heseltine  v.  Siggers  (1  Exch.856),  296. 
Hess  P.  Culver  (77  Mich.  698),  184. 
v.  Fox  (10  Wend.  N.  Y.  436),  160, 

261.9. 

Appeal  (112  Pa,  St.  168),  82. 

Hesseltine  v.  Seavey  (16  Me.  212),  68. 
Hetfield  v.  Central  R.  R.  (29  N.  J.  L. 

671),  81. 
v.  Dow  (27  N.  J.  L.  440),  107, 199. 


Heth  v.  Wooldridge  (6  Rand.  Va.  605), 

270. 
Hewes  v.  Jordan   (39  Md.  472),  316a, 

32  lc. 

v.  Taylor  (70  Pa.  St.  387),  352a. 

Hewett  v.  Currier  (63  Wise.  286),  200a. 

,  Gill  v.  (7  Bush,  Ky.  10),  369. 

,  Reynolds  v.  (27  Pa.  St.  176),  76, 

482. 
Hewitt,  Bell  ».  (24  Ind.  280),  275. 

,  Lilley  v.  (11  Price,  494),  618. 

Hewlins  v.  Shippam  (5  Barn.  &C.  221), 

24. 

Hews,  Kenney  v.  (26  Neb.  213),  405. 
Hey,  Horsfall  v.  (2  Exch.  778),  234. 
Heyd,  Wilstach  v.  (122  Ind.  674),  3466. 
Hey  man  v.  Neale  (2  Camp.  337),  351, 

353. 
Heywood   v.    Stiles    (124   Mass.   275), 

199. 

Hiatt,  Durham  v.  (127  Ind.  514),  279. 
Hibbard  v.  Whitney  (13  Vt.  21),  117. 
Hibbert  v.  Aylott  (52  Tex.  630),  480. 
Hibbs,  Kelsey  v.  (3  Ohio  St.  340),  161c, 

214e. 
Hickey  v.   Dole   (29  Atl.  Rep.  N.   H. 

792),  3466. 
Hickman  v.  Haynes  (L.   R.   10  C.   P. 

698),  426. 

,  Plymouth. v.  (2  Vern.  167),  110. 

,  Soles  v.  (20  Pa.  St.  180),  38,  226, 

376,  382a. 
Hicks  v.  Aylesworth   (13  R.  L   662), 

267. 
,   Brightman   v.  (108   Mass.   246), 

193,  204,  212. 

v.  Cleveland  (48  N.  Y.  84),  138/. 

v.  Hankin  (4  Esp.  114),  351. 

,  Ryley  v.  (1  Stra.  651),  32,  33. 

Hidden  v.  Jordan  (21  Cal.  92),  445a. 
Hide,  Brabin  v.  (32  N.  Y.  619),  342, 

342«. 
Hieronimus,  Leather  Cloth  Co.  v.  (L. 

R.  10  Q.  B.  140),  138e,  425. 
Hiers,   Kinard   v.  (3  Rich.   S.  C.   Eq. 

423),  439. 
Higdon  v.  Thomas  (1  Harr.  &  G.  Md. 

139),  357. 

Higgins,  Crocker  v.  (7  Conn.  342),  441. 
— -,  Hanford  v.  (1  Bosw.  N.  Y.  441), 

197. 

,  Mann  r.  (83  Cal.  66),  848,  875a. 

v.  Murray  (4  Hun,  N.  Y.  665),  308. 

v.  Senior  (8  M.  &  W.  834),  373. 

Higginson,  Bird  v.  (6  Ad.  &  E.  824),  25. 
Highland  v.  Dresser  (35   Minn.   345), 

189. 
Highleyman,  Burrell  v.  (33  Mo.  App. 

183),  309«. 

Hight  v,  Ripley  (19  Me.  139),  808. 
Higley,  Powell  ».  (90  Ala.  103),  119. 
Hildreth,  Blodgett  v.  (103  Mass.  484), 

90,  93,  44  la. 


TABLE   OF  CA.SES. 


Hiler,  Apgar  v.  (24  N.  J.  L.  812),  161ct, 

161c. 

Hiles,  Treat  v.  (68  Wise.  344),  20. 
Hill  v.  Blake  (97  N.  Y.  216),  411. 
,  Doherty  v.  ( 142  Mass.  465),  345a, 

350,  3546,  385. 

,  Frost  v.  (3  Wend.  N.  Y.  386),  369. 

,  Gaunt  v.  (1  Stark.  10),  37 1«. 

,  Oilman  v.   (36  N.  H.  311),  314, 

342a. 

,  Gray  v.  (Ry.  &  M.  420),  119,  124. 

v.  Grosser  (59  N.  H.  513),  122. 

v.  Hooper   (1   Gray,  Mass.  131), 

124,  282u,  283. 

v.  Jamieson  (16  Ind.  125),  277. 

v.   Johnston    (3   Ired.   N.   C.   Eq. 

432),  359. 
,  Kerr  v.   (27   W.  Va.  605),  255a, 

269a. 

v.  Meyers  (43  Pa.  St.  395),  71. 

,  Porter  v.  (9  Mass.  34),  71,  73. 

v.  Raymond  (3  Allen,  Mass.  540), 

197. 

,  Walker  v.  (21  N.  J.  Ch.  191),  95. 

,  Walker  v.  (119  Mass.  249),  157, 

197,  198,  199a. 

,  Weir  v.  (2  Lans.  N.  Y.  282),  289. 

,  Williams  v.  (19  How.  U.  S.  246), 

207. 
,  Williamson   v.  (3  Mackey  D.  of 

C.  100),  204. 

v.  Woodman  (14  Me.  38),  7. 

Hillhouse,  Breed  v.  (7  Conn.  523),  190. 
Hills  v.  Eliot  (12  Mass.  26),  82. 

,  Lee  r.  (66  Ind.  474),  375a. 

Hillvar,  Taylor  v.  (3  Blackf.  Ind.  433), 

104. 
Hilton  r.  Binsmore  (21  Me.  410),  187, 

212. 
v.  Giraud  (1  De  G  &  Smale,  185), 

258. 

Hilyard,  Tomlin  v.  (43  111.  300),  70. 
Hilyer,  Winn  v.  (43  Mo.  App.  139),  171, 

212,  214a. 
Himrod  Co.  v.  Cleveland  Co.  (22  Ohio 

St.  451),345a. 
Hinchman,  Downev  v.  (25  Ind.  453), 

156. 
v.  Lincoln  (124  U.  S.  38),  296«, 

317a,  319a,  321. 
,  Rutan  r.  (30  N.  J.  L.  255),  118, 

293. 
,   Whaley   v.   (22   Mo.  App.  483) 

385. 
Hinckley   v.  Soutligate   (11   Vt.   428), 

279,  281a. 
Hinde  v.  Whitehouse  (7  East,  558),  293, 

334,  348,  351,  369. 

Hindley,  Hoare  v.  (49  Cal.  274),  291a. 
Hindman  v.  Langford  (3  Strobh.  S.  C. 

Law,  207),  202. 
Hine,  Stoudt  v.  (45  Pa.  St.  30),  187, 

206,  214c. 


Hingtgen,  Connor  v.  (19  Neb.  472),  498 
Hinkle  v.  Fisher  (104  Ind.  84),  279. 
,  Stewart  v.  (1  Bond,  C.  C.  506), 

205. 
Hinton,  Cutler  v.  (6  Rand.  Va.   509), 

197,  198. 

Hintrager,  Poole  v.  (60  Iowa,  180),  188. 
Hipper,  Marquand  i-.  (12  Wend.  N.  Y. 

520),  405. 

Hippius,  Benson  v.  (4  Bing.  455),  405. 
Hirbour  v.  Reeding  (3  Mont.  15),  261?. 
Hitchcock,  Braythwayte  v.   (10  Mees. 

&  W.  497),  38. 

v.  Lukens  (8  Port.  Ala.  333),  187. 

Hitchins  v.  Pettingill  (58  N.  Y.  386), 

441c,  444a. 
Hoadley  v.  M'Laine  (10  Bing.  482),  313, 

377. 
Hoag,  Brown  r.  (35  Minn.  373),  448</, 

453,  457a,  458. 
Hoagland,  Cortelvon  v.  (40  N.  J.  Eq.  1), 

161c. 
Hoare,  Evans  v.  (L.  R.  1  Q.  B.  D.  1892, 

593),  358. 

v.  Hindley  (49  Cal.  274),  291a. 

Hobart,  Lampson  v.  (28  Vt.  697),  204, 

212. 

v.  Murray  (54  Mo.  App.  249),  508. 

Hobby,  Rockwell  v.  (2  Sandf.  N.  V.  Ch. 

9),  64. 
Hoby  v.  Roebuck  (7  Taunt.  157),  20, 

233. 

Hockley  v.  Bantock  (1  Russ.  141),  62. 
Hockstadter,  Turnow  r.  (7  Hun,  N.  Y. 

80),  122«,  136,  290. 
Hodge,  Edgerton  v.  (41  Vt.  676),  341, 

3424. 
Hodges  v.  Green  (28  Vt.  358),  117. 

v.  Howard  (5  R.  I.  149),  385,  445. 

v.  Rowing  (58  Conn.  12),  365. 

v.  Richmond   Mfg.    Co.    (9   R.   I. 

482),  278. 
Hodgin  v.  Bryant  (114  Ind.  401),  183, 

184. 

Hodgins  v.  Heaney  (15  Minn.  185),  204. 
Hodgkins  v.  Bond  (1  N.  H.  287),  360. 
Hodgson  v.  Johnson  (El.  B.  &  E.  685), 

117a. 

v.  Le  Bret  (1  Camp.  233),  325, 335. 

Hodson,  McConnell  v.  (2  Gilm.  111.  640). 

65. 

,  Polhemus  v.  (19  N.  J.  Eq.  63),  72. 

Hoe,  Steele  v.  (14  Q   B.  431),  403. 
Hoffman  »>.  Fett  (39  Cal.  109),  487. 
Hoge  v.  Hope  (1  Watts,  Pa.  163),  94. 
Hogg,  Jenkins  >.  (2  Tread.  S.  C.  821), 

265,  369. 
v.  Wilkins  (1  Grant,  Pa.  67),  95, 

229. 

Hogne,  Morrison  v.  (49  Iowa,  574),  200". 
Hoile  v.  Bailey  (58  Wise.  434),  188, 214ft. 
Hoke,  Henderson  v.  (1  Dev.  &  B.  N.  C 

Eq.  119),  92. 


TABLE   OF  CASES. 


Ixi 


Holbrook  v.  Armstrong   (10  Me.  31), 

289. 
v.  Chamberlain  (116  Mass.  155), 

14o. 

,  Kingsley  r.  (45  N.  H.  313),  256. 

v.  Tirrell  (9  Pick.  Mass.  105),  60. 

,  Warren    Chemical    Co.    v.   (118 

N.  Y.  58C),  279,  302. 
Holcomb,  Reed  c.  (31  Conn.  360),  161c, 

197. 
Holden,  Mullaly  v.  (123  Mass.  583),  505. 

v.  Starks  (159  Mass.  503),  135. 

Holderbaugh  r.  Turpin    (75   Ind.   84), 

180. 
Holdswortli,  Bradley  v.  (3  Mees.  &  W. 

422),  258,  296. 
Holland,  Gibson  v.  (L.  R.  1  C.  P.  1), 

352«,  354a. 

v.  Hoyt  (14  Mich.  238),  17,  370a. 

,  Lydic-k  v.  (83  Mo.  783),  457,  460. 

Hollenback,  Lloyd  v.  (98  Mich.  203), 

487. 

Holler  v.  Richards  (102  N.  C.  545),  508. 
Hollida  v.  Shoop  (4  Md.  465),  89,  91. 
Holliday  v.  Marshall  (7  Johns.  N.  Y. 

211),  8,  42. 
Hollingshead  /;.  McKenzie  (8  Ga.  457), 

498,  515. 
Hollingsworth,  Williams  v.  (1  Strobh. 

S.  C.  Eq.  103),  93. 
Hollis  v.  Edwards  (1  Vern.  159),  466, 

488. 

v.  Morris  (2  Harr.  Del.  3),  124. 

v.  Poole  (3  Met.  Mass.  350),  20,  39. 

,  Stowera  v   (83  Ky.  544),  276. 

v.  Whiteing  (1  Vern.  151),  446, 525. 

Hollobaugh,  Baker  v.  (15  Ark.  322), 

519. 
Holloway  v.  Hampton  (4  B.  Mon.  Ky. 

415),  283,  285,  289. 

Holm  v.  Sandberg  (32  Minn.  427),  103 
Holman  v.  Norfolk  Bk.  (12  Ala.  369), 

379 

Holmden  v.  Janes  (42  Kans.  758),  465. 
Holmes  v.  Caden  (57  Vt.  Ill),  465. 

v.  Evans  (48  Miss.  247),  385. 

,  Gooch  v.  (41  Me.  523),  298. 

,  Hawkins  v.  (1  P.  Wms.  770),  355, 

460. 

v.  Floskins  (9  Exch.  753),  323. 

v.  Knights  (10  N.   H.  176),  16k, 

164. 

v.  Mnckrell  (3  C.  B.  N.  8.  789),  357. 

. v.  McCray  (51  Ind.  858),  261  rf,  262. 

,  Poultney  v.  (1  Stra.  406),  45,  230. 

v.  Trout  (7  Pet.  U.  S.  171),  60. 

,  Whitney  v.  (15  Mass.  152),  76. 

Holms   v.   Johnson    (12   Heisk.   Tenn. 

155),  371. 
Unit,  Fleming  v.  (12  W.  Va.  143),  608. 

,  Mussey  v.  (24  N.  H.  248),  60,  61. 

Holton,  Cunningham  v.  (55  Me.  33),  38. 
Holtzclaw,  Ringer  v.  (112  Mo.  619),  384. 


Holzhausen,  Bauman  v,  (26  Hun,  N.  Y. 

505),  96. 
Home,  Farina  v.  (16  Mees.  &  W.  119), 

316/,  319«. 

v.  Ingraham  (125  111.  198),  261rf. 

National  Bank  v.  Waterman  (134 

111.  461),  164,  197. 

Homer  v.  Homer  (107  Mass.  82),  98, 104. 
,  Nones  v.  (2  Hilt.  N.  Y.  116),  126, 

291. 
Honald,    Haughabaugh   v.    (1   Tread. 

S.  C.  90),  73. 

Hooker  v.  Knab  (26  Wise.  611),  117a. 
,  Phillips  v.  (Phil.  N.  C.  Eq.  193), 

385. 

i..  Russell  (67  Wise.  257),  156. 

Hooper,  Ex  parte  (19  Ves.  477),  62,  476. 
,  Hill  P.  (1  Gray,  Mass.  131),  124, 

282a,  283. 
Hoover,  Johnson  v.  (72  Ind.  395),  157. 

v.  Morris  (3  Ohio,  56),  164. 

v.  Pacific  Co.  (41  Mo.  App.  317), 

37a,  38. 

Hopkins  v.  Carr  (31  Ind.  260),  164. 
,  Conkey  v.  (17  Johns.  N.  Y.  113), 

159. 
,  Gardiner  v.  (6  Wend.  N.  Y.  23), 

202. 

Horn  v.  Bray  (51  Ind.  555),  161c. 
,  Pattison  v,  (1  Grant,  Pa.  301),  95, 

226- 

v.  Shamblin  (57  Tex.  243),  505. 

Horndon-on-the-Hill,  Hex   v.  (4  Maule 

&  S.  665),  25. 
Home,  Ex  parte  (7  Barn.  &  C.  632), 

258. 
Payne,   Hussey   v.  (1   App.   Cas. 

311),  371a. 
v.  Wingfield  (3  Scot*,  N.  R.  340), 

428. 
Horner,  Greenwalt  v.  (6  Serg.  &  R.  71 ), 

465. 
Hornsby,  Cooper  r.  (71  Ala.  62). 

,  Fine  r.  (2  Mo.  App.  61),  298. 

Horse  Nail  Co.,  Moore  v.  (76  Mich.  606), 

118. 
Horsey  v.  Graham  (L.  R.  6  C.  P.  9), 

263o,  385. 

Horsfall  v.  Hey  (2  Exch.  778),  234. 
Horton  v.  McCarty  (53  Me.  394),  353a. 

,  Wells  v.  (4  Bing.  40),  275. 

v.  Wollner  (71  Ala.  462),  385. 

Horwell,  Harris  v.  (Gilb.  Eq.  11),  94. 
Hosford  r.  Carter  (10  Abb.  N.  Y.  Pr. 

452),  229. 
Hoskins,  Booth  v.  (75  Cal.  271),  441«. 

,  Holmes  r.  (9  Exch.  763),  323. 

Hossack,    Underwood  v.  (38  111.  208), 

360. 
Hotchkiss,  Downey  v.  (2  Day,  Conn. 

225),  451. 
Houghtalin«  v.  Ball  (19  Mo.  84),  302, 

321. 


Ixii 


TABLE  OF  CASES. 


Houghtaling  v.  Houghtaling  (5  Barb. 

N.  Y.  383),  29. 
Houghton  v.  Houghton  (14  Ind.  505), 

276. 

Houlditch  v.  Milne  (3  Esp.  86),  205. 
House,  Sterling  Organ  Co.  v.  ('25  W. 

Va.  64),  279. 
Houser  v.  Lamont  (55  Pa.  St.  311),  135, 

498. 
Housler,  Boynton  v.  (73  Pa.  St.   453), 

95,  96a. 
Houston  v.  Laffee  (46  N.  H.  505),  29, 

30. 
,  Lookout  Mt.  R.  R.  v.  (85  Tenn. 

224),  212. 
,  Shindler  v.  (1  Denio,  N.  Y.  52), 

319. 

,  Shindler  v.  (I  N.  Y.  268),  320. 

v.  Townsend  (1  Del.  Ch.  416),  462. 

,  Townsend  v.  (1  Harr.  Del.  532), 

462. 
Howard,  Bell  v.  (9  Mod.  302),  430,  432. 

p.  Brower  (37  O.  St.  402),  152, 

463,  509. 

v.  Burgen  (4  Dana,  Ky.  137),  276. 

v.  Coshow  (33  Mo  118),  188. 

Currier  v.  (14  Gray,  Mass.  511), 

82. 

17.  Easton  (7  Johns.  N.  Y.  205), 

231  233 

,  Feeney  v.  (79  Cal.  525),  508,  511. 

,  Hanff  17.  (3  Jones,  N.  C.  Eq.  44), 

259. 

,  Hodges  P.  (5  R.  1. 149),  385,  445. 

v.  Okeover  (3  Swanst.  421),  507. 

i'.  Priest  (5  Met.  Mass.  582),  259. 

,  Randall  ».   (2  Black,  U.  S.  585), 

509. 

Reed  v.  (71  Tex.  204),  80. 

i7.  Sexton  (4  N.  Y.  157),  1356. 

,   Tewksbury   v.   (37   N.   E.   Rep. 

Ind.  355),  385. 
Howarth,   Mixer    17.    (21   Pick.   Mass. 

205),  302,  305,  307. 

Howe  v.  Batchelder  (49  N.  H.  204),  256. 
v.  Chesley  (56  Vt.  727),  508. 

v.  Dewing  (2  Gray,  Mass.   476), 

354. 

,  Frazer  ».  (106111.  563),  118,  371. 

v.  Hay  ward  (108  Mass.  54),  3426. 

v.  O'Mally  (1  Murph.  N.  C.  287), 

270. 
17.  Palmer  (3  Barn.  &  Aid.  321), 

324,  327. 

t7.  Wilder  (11  Gray,  Mass.  267), 

60. 
Ho  well  v.  Field  (70  Ga.  592),  1666. 

».  Kelly  (149  Pa.  St.  473),  261.7. 

,  Smith  v.    (3  Stockt.  N.  J.  'Ch. 

349),  97. 
Hower,  Miller  v.   (2  Rawle,  Pa.  53), 

467. 
Howes  v.  Martin  (1  Esp.  162),  159, 164. 


Howland  17.  Blake  (97  U.  S.  624),  4416. 
,  Douglass  o.  (3  E.  D.  Smith,  N.  Y. 

551),  157. 
Howlett,  Killmore  v.  (48  N.  Y.   569), 

257a,  306. 
,   Staats  v.   (4  Denio,  N.  Y.  559), 

405. 

Hoxie  v.  Carr  (1  Sumn.  C.  C.  173),  84. 
Hoyle  v.  Bush  (14  Mo.  App.  408),  117. 
Hoyt,  Holland  17.  (14  Mich.  238),  17 

370a. 

,  Lathrop  v.  (7  Barb.  N.  Y.  59),  90. 

Hubbard,  Irwin  v.  (39  Ind.  350),  267. 

,  Russell  v.  (59  111.  335),  29,  31a. 

,  Stearns  v.   (8  Greenl.  Me.  320), 

615. 
Hubbell,  Johnson  17.  (2  Stockt.  N.  J. 

Ch.  332),  263,  463. 

,  Turners.  (2  Day,  Conn. 457),  155. 

Huber  v.   Ely   (45  Barb.  N.  Y.  169), 

1666. 
Hubert  17.  Moreau  (2  Carr.  &  P.  528), 

355,  355a,  362. 

,  Murphy  v.  (7  Pa.  St.  420),  81,  84. 

17.   Turner   (4  Scott,  N.  R.  486), 

355,  357,  370. 

Hubon  17.  Park  (116  Mass.  541),  188. 
Huddleston  v.  Briscoe  (11   Ves.  583), 

365. 
,  Rainer  ».  (4  Heisk.  Tenn.  223), 

119,  490. 

Hudgins,  Garner  17.  (46  Mo.  390),  161c. 
Hudlestone,  Johnstone  v.  (4  Barn.  &  C. 

922),  47,  65. 
Hudnut  v.  Weir  (100  Ind.  501),  341. 

,  Weir  n.  (115  Ind.  525),  341. 

Hudson  17.  Coble  (97  N.  C.  260),  265. 
,  Henderson  17.  (1  Munf.  Va.  610), 

147,  151,  259,  261rf,  2610. 

17.  King  (2  Tenn.  560),  352a. 

,  Smith  17.  (6  Best  &  S.  431),  32ld, 

3276. 

v.  Weir  (29  Ala.  294),  298. 

,  Windell  v.  (102  Ind.  521),  188. 

Furniture  Co.  v.  Freed  Furniture 

Co.  (36  Pac.  Rep.  Utah,  132), 

3276. 

Huff  17.  Hall  (56  Mich.  456),  117. 
f.  McCauley  (53  Pa.  St.  206),  31, 

245 
,  Minick  v.   (59  N.  W.  Rep.  Neb. 

795),  161c. 
Huffman  v.  Ackley  (34  Mo.  277),  135, 

508. 

17.  Starks  (31  Ind.  474),  37.  • 

Hughes,  Bricker  v.  (4  Ind.  146),  246. 

17.  Fisher  (10  Col.  383),  187. 

v.  Hatchett  (55  Ala.  539),  129. 

i7.  Jones  (9  Mees.  &  W.  372),  78. 

,  Langdon  v.  (107  Mass.  272),  193. 

17.  Lawson  (31  Ark.  613),  187. 

17.  Lumsden  (8  Brad.  111.  App.  Ct. 

185),  135. 


TABLE   OF   CASES. 


Ixiii 


Hughes  v.  Moore  (7  Cranch,  U.  S.  176), 

229 
,  Rann  v.  (7  T.  R.  350,  note),  189, 

190,  605a. 

Hugus  v.  Walker  (12  Pa.  St.  173),  493. 
Hulbert,  Churchill  v.  (110  Mass.  42), 

27. 
,  Glass  v.  (102  Mass.  24),  89,  94a, 

409,  4416, 441c,  444a,  446,  448a, 

450,  453,  457a,  461,  467,  470, 

475. 
Hulick,  Zickafosse  v.  (1  Morris,  Iowa, 

175),  233. 
Hull,  Bennett  v.  (10  Johns.  N.  Y.  364), 

293. 

r.  Brown  (35  Wise.  652),  159. 

Humbert  v.  Brisbane  (25   S.  C.  506), 

385,  461. 
Humble  v.  Mitchell  (U  Ad.  &  E.  205), 

258,  296. 
,  Sinimonds  i;.  (13  C.  B.  N.  8.  262), 

319«. 

Humphrey  v.  Fair  (79  Ind.  410),  150. 
,  Pratt  v.  (22  Conn.  317),  186,  188, 

190. 
Humphreys  v.  Green  (L.  R.  10  Q.  B. 

D.  148),  451. 
,  Noyes  v.  ( 1 1  Grat.  Va.  636),  147, 

197,  198,  212. 
c.  St.  Louis  R.  R.  (37  Fed.  Rep. 

307),  210. 

Humphries,  Locke  v.  (60  Ala.  117),  187. 
Hunnewell,  Phillips  v.  (4  Greenl.  Me. 

376),  3186. 
Hunt,  Bryan  r.  (4  Sneed,  Tenn.  543), 

411. 

v.  Coe  (15  Iowa,  197),  451. 

o.  Hayt  (10  Col.  278),  465. 

».'.  Hecht  (8  Excli.  814),  316o,  316rf, 

3U}f,  321,  329,  331. 
,  Jephefson  v.  (2  Allen,  Mass.  417), 

157,  212. 
r.  Johnson   et  aJ  (96   Ala.  530), 

608. 

p.  Jones  (12  R.  I.  265),  136. 

,  Kidder  v.  (I  Pick.  Mass.  328),  118, 

127,  134,  451. 

v.  Lipp  (30  Neb.  469),  486. 

i\  Massey   (5  Barn.  &  Ad.  902), 

Appendix,  p.  688. 
v.  Maynard  (6  Pick.  Mass.  489), 

65,  267. 
,  Mills  i;.  (17  Wend.  N.  Y.  333), 

335. 

i-.  Roberts  (40  Me.  187),  446a. 

v.  Wimbledon  Board  (4  C.  P.  Div. 

48),  467. 

Huntbach,  Harris  v.  (1  Burr.  71),  156. 
Hunter,  Enos  c.  (4  Gilm.  111.  211),  91, 

93. 
,  Janett  v.  (L.  R.  34  Ch.  D.  182), 

o— o 

v.  Randall  (62  Me.  423),  1846,  608. 


Hunter,  Robertson  v.  (29  S.  C.  9),  197. 

».  Seton  (7  Ves.  265),  366. 

v.  Wetsell  (17   Hun,  N.  Y.  133), 

342,  343. 

v.  Wetsell  (57  N.  Y.  375),  343. 

v.  Wetsell  (84  N.  Y.  649),  342, 343. 

Hunting,  Oliver  v.  (L.  R.  44  Ch.  D 

205),  348. 
Huntingfield,  Snelling  v.  (1  Cromp.  M. 

&  K.  20),  291. 
Huntington  v.  Harvey  (4  Conn.  124), 

164,  197. 

v.  Knox  (7  Cush.  371),  373. 

v.  Smith  (4  Conn.  235),  65. 

r.  Wellington  (12  Mich.  10),  185, 

268. 

Huntress  r.  Patten  (20  Me.  28),  191. 
Kurd,  Clark  v.  (79  Mich.  130),  184. 
Hurd,  Mott  v.  (I  Root,  Conn.  72),  270. 
Hurley  r.  Brown  (98  Mass.  645),  385. 

,  Johnson  v.  (115  Mo.  613),  487. 

Huskinson,  Kent  v.  (3  Bos.  &  P.  233), 

326,  326a. 
Hussey  v.  Horne-Payne  (4  App.  Cas. 

311),  371a. 
Huston  v.  Cincinnati  R.  R.  (21  Ohio 

St.  35),  369. 

v.  Stewart  (64  Ind.  388),  117. 

Hutchins  v.  Byrnes  (9  Gray,  Mass.  367), 

9,  13. 

v.  Lee  (1  Atk.  447),  82,  111. 

,  Sims   v.  (8  Smedes  &  M.  Miss. 

328),  122. 
v.  Van  Vechten  (140  N.  Y.  115), 

99. 
Hutchinson,   Cole  v.   (34   Minn.   410), 

163,  197. 
,  Dobell  v.  (3  Ad.  &  E.  355),  3466, 

364. 

,  Field  v.  (1  Beav.  699),  507. 

,  Fish  r.  (2  Wils.  94),  191,  197. 

v.  Hutchinson  (46  Me.  154),  276. 

,  McLaren  v.  (22   Cal.   187),    187, 

2146. 
v.  Tindall  (2  Green,  N.  J.  Ch.  357), 

99,  102. 
Hutley,  Symes  v.  (2  L.  T.  N.  8.  609), 

371. 

Hutton  v.  Padgett  (26  Md.  228),  391. 
v.  Williams   (35   Ala.   603),  265, 

369. 
Huxley,    Norton    v.   (13  Gray,   Mass. 

285),  183. 
Hyde  v.  Johnson  (2  Bing.  N.  R.  776), 

Appendix,  p.  683. 

v.  Johnson  (3  Scott,  289),  870c. 

,  Marsh   v.    (8   Gray,   Mass.  331), 

,  Smith'*.  (19  Vt.  54),  196,  190. 

Hyman   v.  Devereux   (63  N.   C.  624), 

65. 
,  Whitehurst   v.   (90  N.   C.  487), 

205. 


Ixiv 


TABLE    OF   CASES. 


Ide,  Smith  v.  (3  Vt.  290),  391,  407. 
v.  Stanton  (15  Vt.  685),  293,  303, 

344,  348,  376. 

lilies,  Castro  v.  (13  Tex.  229),  267. 
Indiana  Mfg.    Co.  v.  Porter   (75   Ind. 

428),  165. 
Indiana    State    Bk.   v.   Anderson    (14 

Iowa,  544),  65. 
Ingalls,  Silsbee  o.  (10  Pick.  Mass.  526), 

186. 

Inge,  Liggins  v.  (7  Bing.  682),  27a. 
Ingersoll  v.  Baker  (41  Mich.  48),  199. 
Ingles  v.  Patterson  (36  Wise.  373),  491. 
,  Walrath  v.  (64  Barb.  N.  Y.  265), 

342a. 
Ingraham,  Home  v.  (125  111.  198),  26ld. 

,  Newell  v.  (15  Vt.  422),  197. 

v.  Strong   (41    111.   App.   Ct.   46), 

157. 
Ingram  v.  Dowdle  (8  Ired.  N.  C.  Law, 

455),  264. 
- ,  Ridgway  v.  (50  Ind.  145),  3466, 

348. 

,  White  v.  (110  Mo.  474),  491a. 

Inhabitants  of  — .     See  name  of  place. 
Inman  o.  Stamp  (1  Stark.  12),  20,  482. 

,  Surnan  v.  (6  Mo.  App.  384),  213. 

Inskip,  Abbott  v.  (29  Ohio  St.  59),  122a, 

276. 

Ireland  v.  Kittle  (1  Atk.  541),  68. 
Irvin  v.  Thompson  (4  Bibb,  Ky.  205), 

12. 
Irvine,    Miller  v.  (1  Dev.  &  B.  N.  C. 

Law,  103),  391,  395. 
,  v.  Stone  (6  Cush.  Mass.  508),  142, 

149. 
Irwin,  Bailey  i».  (72  Ala.  505),  508. 

v.  Hubbard  (39  Ind.  350),  267. 

,  Pike  v.   (1  Sandf.  N.  Y.  14),  172, 

174. 

,  Richter  v.  (28  Ind.  26),  269. 

Ithaca  Bapt.  Ch.  v.  Bigelow  (16  Wend. 

N.  Y.  28),  351,  369,  384. 
Ithel  v.  Potter  (1  P.  Wms.  770,  note), 

355. 
Iverson  v.  Cirkel  (57  N.  W.  Rep.  Minn. 

800),  508. 
Ives  v.  Armstrong  (5  R.  I.  567),  385. 

v.  Gilbert  (TRoot,  Conn.  89),  124. 

».  Hazard  (4  R.  I.  14),  366,  376. 

,  Smith  v.  (15  Wend.  N.  Y.  182), 

404,  405. 
Ivie,  Stringfellow  v.  (73  Ala.  209),  141, 

267. 
Ivison,  Eyre  v.  (2  Bro.  C.  C.  559,  note), 

515. 
Izard,   Deane   v.    (1   Vern.   159),   466, 

488. 

v.  Izard  (Bail.  S.  C.  Eq.  228),  223. 

v.  Middleton  (1  Desaus.  S.  C.  Ch. 

116),  275. 


J. 


Jack  v.  McKee  (9  Pa.  St.  325),  226,  271. 

v.  Morrison  (48  Pa.  St.  113),  197. 

Jackens  v.  Nicolson  (70  Ga.  198),  369. 
Jackman,  Nau  v.  (58  Iowa,  359),  471. 
v.  Kingland  (4  Watts  &  S.  Pa. 

149),  84,  90,  94,  96. 

Jackson,  Ames  v.  (115  Mass.  508),  135. 
v.  Bateman  (2  Wend.  N.  Y.  570), 

90. 

v.  Bradt  (2  Caines,  N.  Y.  169),  68. 

v.  Bronson  (19  Johns.  N.  Y.  325), 

65. 
v.  Brownson  (7  Johns.  N.  Y.  227), 

55. 
v.  Bull  (2  Caines,  N.  Y.  Cas.  301), 

78,  130. 
,  Burdick  v.  (14  Hun,  N.  Y.  488), 

136. 

,  Catlin  v.  (8  Johns.  N.  Y.  520),  78. 

,  Cavanaugli  v.  (91  Cal.  580),  75. 

,  Cooth  v.  (6  Ves.   12),  378,  454, 

460,  498,  515,  518. 
v.  Covert  (5  Wend.  N.  Y.  139), 

302. 

i'.  Evans  (44  Mich.  510),  140. 

v.  Gardner  (8  Johns.  N.  Y.  394), 

44. 

v.  Gould  (7  Wend.  N.  Y.  364),  59. 

v.  Harder  (4  Johns.  N.  Y.  202),  f 


,  Hayes  v.  (159  Mass.  451),  3816. 

v.  Jackson  (29  Ves.  591),  259,  260. 

v.  Lowe  (1  Bing.  9),  3466. 

,  McKenzie  v.  (4  Ala.  230),  187. 

v.  Moore   (6  Cowen,  N.   Y.  706), 

89,  97. 

v.  Morse  (16  Johns.  N.  Y.  197),  84. 

v.  Myers  (120  Ind.  504),  439. 

v.  Parkhurst  (4  Wend.  N.  Y.  376), 

64. 

v.  Pierce  (2  Johns.  N.  Y.  221 ),  451. 

v.  Rayner   (12  Johns.  N.  Y.  291), 

170,  187. 

,  Saunderson  v.  (3  Esp.  180),  356. 

,  Saunderson  v.  (2  Bos.  &  P.  238), 

346,  352,  357. 
v.  Stanfield(37  N.  E.  Rep.  Ind.  14), 

135. 

v.  Stevens  (108  Mass.  94),  90. 

v.  Sternberg  (1  Johns.  N.  Y.  Cas. 

153),  96. 
v.  Titus  (2  Johns.  N.  Y.  430),  12a, 

360. 

v.  Tupper  (101  N.  Y.  515),  343. 

v.   Van   Duzen   (5  Johns.   N.  Y. 

144),355a. 
v.  Vosburgh  (9  Johns.  N.  Y.  270), 

68. 

v.  Walsh  (8  Johns.  N.  Y.  226),  13. 

v.  Watts   (1  Me  Cord,  S.  C.  Law, 

288),  340 
v.  Willard  (4  Johns.  N.  Y.  41),  65. 


TABLE   OF  CASES. 


Ixv 


Jackson   v.   Wood    (12  Johns.   N.   Y. 

73),  6. 
Jackson  Water  Co.,  Ellison  v.  (12  Cal. 

642),  391. 
Jacob  v.  Kirk  ('2  Moo.  &  R.  221),  348, 

349,  373.' 
v.  Smith  (5  J.  J.  Marsh.  Ky.  380), 

130. 

,  Yeakle  v.  (33  Pa.  St.  376),  28. 

Jacobs  c.  Mosely  (91  Mo.  457),  75. 
c.  Peterborough  R.   R.   (8  Cush. 

Mass.  223),  448. 

,  Watson  v.  (29  Vt.  169),  193. 

Jacocks,  Sweet  v.  (6  Paige,  N.  Y.  355), 

87,  96. 

Jaffray,  Lindsay  v.  (55  Tex.  626),  269. 
Jakeman,  Shaw  v.  (4  East,  201),  223. 
James,  Baumann  v.  (L.  R.  3  Ch.  App. 

508),  385. 

v.  Drake  (39  Tex.  143),  228. 

v.  Patten  (6  N.  Y.  9),  357 

,  Pipkin  r.  (1  Humph.  Tenn.  325), 

354,  385. 

v.  Rice  (Kay,  Ch.  231),  499. 

v.  Smith   (L.  R.   1  Ch.  D.   1891, 

384),  96. 
v.  Williams  (5  Barn.  &  Ad.  1109), 

388,  404. 
Jameson,  Baker  v.  (2  J.  J.  Marsh.  Ky. 

547),  134. 
Jamesson,  Thompson  v.  (1  Cranch,  C.  C 

295),  515. 

Jamieson,  Hill  v.  (16  Ind.  125),  277. 
v.  Millemann  (3  Duer,  N.  Y.  255), 

30,31. 
Jamison,  Brvan  v.  (7  Mo.  106),  208. 

v.  Simon  (68  Cal.  17),  338. 

Janes,  Holmden  v,  (42  Ivans.  758),  465. 
Jansen  i;.  McCahill  (22  Cal.  563),  126. 
Janvrin  v.  Maxwell  (23  Wise.  51),  318ft. 
Jaques,  Eaton  r.  (2  Doug.  455),  65. 
Jaqueth,  Gaae  v.  (1   Lans.  N.  Y.  207), 

365. 
Jaquish,  Allen  v.  (21  Wend.  N.  Y.  628), 

7,  8,  42,  47 

Jarboe  c.  Severin  (85  Ind.  496),  118. 
Jarman,  Silvester  v  (10  Price,  78),  65. 
Jarrett  v.  Hunter  (L  R  34  Ch.  D.  182), 

373. 
r.  Johnson    (11   Grat.   Va.    327), 

129 
Jarvis,  Allen  v.  (20  Conn.  38),  307. 

r.  Dutcher  (16  Wise.  307),  64. 

r.  Wilson  (8  Reporter,  264),  174 

Jaudon,    Hnirston    v.    (42  Miss.  380), 

122 
Jayne,  Murray  ?».  (8  Barb.  N.  Y.  612), 

467. 

Jeakes  v.  White  (6  Exch.  873),  268. 
Jee,  Cripps  v.  (4  Bro.  Ch.  472),  111. 
Jeffereys  v.  Small  (1  Vern.  217),  259, 

2RO. 
Jefferies,  Bromley  v.  (2  Vern.  415),  376. 


Jeffers,  Negley  v.  (28  Ohio  St  90),  117, 

421. 
Jefferson  County  v.  Slagle  (66  Pa.  St. 

202),  199a. 

Jelks  v.  Barrett  (52  Miss.  315),  346a. 
Jellett  v.  Rhode  (43  Minn.  160),  272. 
Jellison  v.  Jordan  (69  Me.  373),  118. 
Jenison  /•.  Graves  (2  Blackf.  Ind.  440), 

93. 
Jenkins   v.  Eldredge   (3   Story,  C.  C. 

181),  86,  88,  94,  94a,  96,  104, 

111,  113,440. 

,  Groce  v.  (28  S.  C.  172),  505. 

v.  Harrison  (66  Ala.  345),  354, 3546. 

v.  Hogg  (2  Tread.  S.  C.  821),  265, 

369. 
v.  Reynolds  (3  Brod.  &  B.  14),  388, 

389,  396. 

Jenks  v.  Edwards  (11  Exch.  775),  37a. 
,  Gray,  v.  (2  J.  J.  Marsh.  Ky.  21), 

118. 

Jenness,  Elliott  v.  (Ill  Mass.  29),  505. 
v.  Mount  Hope  Co.  (53  Me.  20), 

37  la. 

v.  Wendell  (51  N.  H.  63),  314,  335. 

Jennings  r.  McComb  (112  Pa.  St.  518), 

126. 
Jensen,  Larson  v.  (63  Mich.  427),  198, 

199. 
Jenyns,  Thornton  v.  (1  Man.  &  G.  166), 

403. 
Jepherson  v.  Hunt  (2  Allen,  Mass.  417), 

157,  212. 
Jerdein  v.  Bright  (2  Johns.  &  H.  325), 

605a. 

Jerney  v.  Doten  (70  Cal.  399),  323. 
Jeroloman,   Crosby   v.    (37   Ind.   264), 

1666. 

Jerome,  Stewart  v.  (71  Mich.  201),  204. 
Jervis  v  Berridge   (L.   R.  8  Ch.  App. 

351),  384. 
v.  Smith  (Hoff.  N.  Y.  Ch.  470), 

454,  483. 

Jessopp,  Powell  v.  (18  C.  B.  336),  258. 
Jevons,  Edwards  v.  (8  C.  B.  436).  403. 
Jewell,  Aldrich  v.  (12  Vt.  125),  197. 

,  Dow  v.  (18  N.  H.  340),  73 

,  Dow  r.  (21  N.  H.  488),  82. 

Kicker  (68  Me.  377),  117. 


Jewett  v.  Warren  (12  Mass.  300),  319. 
Jilson  v.  Gilbert  (26  Wise.  637),  275. 
John  v.  Sabiltis  (69  Me.  473),  75. 
Johns,  Bullard  r.  (50  Ala  «H2),  370a. 

r.  Johns  (1  Ohio  St.  350),  258. 

,  Johns  v.  (67  Ind.  440),  481. 

v.  Norris  (22  N.  J.  Ch.  102),  95. 

Johnsen,  Richardson  v.  (41  Wise.  100), 

441«. 
Johnson  v    Albertson   (51  Minn.  333), 

38. 

,  Alger  r.  (4  Hun,  N.  Y.  412),  608 

,  Brant  v.  (16  Kans.  389),  193. 

v.  Brook  (31  Miss.  17),  354. 


Ixvi 


TABLE   OF   CASES. 


Johnson  v.  Brooks  (93  N.  Y.  337),  96. 
v.  Buck   (35  N.  J.  L.   338),  348, 

368. 

v.  Cuttle  (105  Mass.  447),  3276. 

,  District  of  Columbia  v.  (1  McKay 

51)  ,346. 

c.  Dodge  (17  111.  433),  370a, 

v.  Dodgson  (2  Mees.  &  W.  653), 

349,  354,  357,  358,  511,  518. 
,  Edwards  v.  (3  Houst.  Del.  435), 

370. 

,  Elliott  v.  (L.  R.  2  Q.  B.  120),  38. 

v.  Gilbert  (4  Hill,  N.  Y.  178),  165. 

,  Goodrich  v.  (66  Ind.  259),  282a. 

,  Haggerty  r.  (48  Ind.  41),  193. 

v.  Hansen  (6  Ala.  351),  121,  451. 

r.  Hart  (3  Johns.  N.  Y.  Cas.  322), 

65. 

,  Henderson  v.  (6  Ga.  390),  391- 

,  Hodgson   v.    (EL  B.  &  E.  685), 

Il7a. 

v.  Hoover  (72  Ind.  395),  157. 

v.  Hubbell  (2   Stock.  N.  J.   332), 

263,  463. 

v.  Hurley  (115  Mo.  513),  487. 

,  Hyde  v.  (2  Bing.  N.  R.  776),  Ap- 
pendix, p.  583. 

,  Hyde  v.  (3  Scott,  289),  370c. 

,  Jarrett  v.  (11  Grat.  Va.  327),  129. 

,  Johnson  v.  (8  Baxter,  Tenn.  261), 

444a,  500. 
v.  Kellogg  (7  Heisk.  Tenn.  262), 

348,  385. 

,  Kelly  v.  (34  Mo.  400),  107. 

v.  Knapp  (36  Iowa,  616),  1666. 

v.  Krassin  (25  Minn  117),  118. 

,  Kronheim  v.  (7  Ch.  Div.  60),  106, 

3466,  357. 

,  Larsen  v.  (78  Wise.  300),  116. 

v.  McGruder  (15  Mo.  365),  370a. 

,  Massey  v.  (1  Exch.  255),  229. 

,  Mayberry  v.  (3  Green,  N.  J.  Law, 

110),  6,  7,43. 

,  Meyers  o.  (15  Ind.  261),  75. 

v.  Mulry  (4  Rob.  N.  Y.  401),  369. 

v.  Neil  (4  Ala.  166),  77. 

,  Nichols   v.  (10  Conn.    192),   373, 

374,  385. 

v.  Noonan  (16  Wise.  687),  157. 

,  Payne  v.  (1  Tyrw.  283,  note),  138 

,  Probasco  v.  (2  Disney,  Ohio,  96), 

64 
v.   Reading    (36   Mo.    App.   306), 

46,  291a,  485. 

r.  Ronald  (4  Munf.  Va.  77),  377. 

,  Sennett  v.  (9  Pa.  St.  335),  131. 

v.  Somers  (1  Humph.  Tenn.  268), 

14. 

,  Stansfield  v.  (I  Esp.  101),  369. 

,  Temple  v.  (71  111.  13),  461. 

v.  Trask  (116  N.  Y.  136),  293. 

v.  Trinity   Ch.   (11   Allen,  Mass 

123)/344,  346. 


Johnson,  Truner  v.  (95  Mo.  431).  448. 
v.  Van  Velsor  (43  Mich.  208),  12. 


,  Walker  v.  (96  U.  S.  424),  278, 

279. 

v.  Watson  (1  Ga.  348),  289. 

,  Wilbur  v.  (58  Mo.  600),  215. 

-  v.  Wilkinson  (139  Mass.  3),  20. 

-  v.  Wilson  (Willes,  248),  68. 

-  rf  ai.  Hunt  v.  (96  Ato.  5:30),  508. 
Johnston  v.  Glancy  (4  Blackf.  Ind.  94), 

473,  476,  483. 
-,  Hill  v.  (3   Ired.  N.  C.  Eq.  432) 

359. 
-,  Holms  v.  (12  Heisk.  Tenn.  155), 

371. 

-  v.  Johnston   (6   Watts,  Pa.  370), 

467. 
-,  Johnston  v.  (138  111.  385),  91. 

v.  Jones  (85  Ala.  286),  354,  3546. 

,  Reynolds  v.  (13  Tex.  214),  467. 

Johnstone  r.  Hudlestone  (4  Barn.  &  C. 

922),  47,  55. 
Jolley  v.  Walker  (26  Ala.  690),  179. 
Jolliffe,  Mundy  v.  (5  Myl.  &  C.  167), 

466,  494. 
Jones,  Andrews  v.  (10  Ala.  400),  116, 

223 

-  v.  Booth  (38  O.  St.  405),  433. 

—  v.  Brewer  (1  Pick.  Mass.  314),  77, 
v.  Carter  (4  Hen.  &  M.  Va.  184), 

13. 

-,  Clark  v.  (85  Ala.  127),  187. 
-,  Clark  v.  (87  Ala.  474),  197. 

—  r.  Cooper  (1  Cowp.  227),  163,  198. 

r.  Davis  (16  Ves.  262),  518. 

,  Douglas  v.  (3  E.  D.  Smith,  N.  Y. 

551),  157. 

v.  Dow  (142  Mass.  130),  373. 

v.  Field  (83  Ala.  447).  534. 

v.  Flint  (10  Ad.  &  E.  753),  245, 

246,  251. 

,  Green  v.  (76  Me.  563),  451. 

v.  Guaranty  Co.  (101  U.  S,  622), 

441a. 

v.  Hagler  (95  Ala.  529),  535. 

,  Hamilton  v.  (3  Gill  &  J.  Md.  127), 

448,  454,  488. 
,  Hardesty  v.  (10  Gill  &  J.  Md.  404), 

188,  289,  461. 

,  Hughes  v.  (9  Mees.  &  W.  372),  78. 

,  Hunt  v.  (12  R.  I.  265),  136. 

,  Johnston  v.  (85  Ala.   286),  354, 

3546. 
v.  Jones  (1  Head,  Tenn.  105),  445a. 

v.  Kokomo  Association   (77  Ind. 

340),  264,  353,  369. 
v.  Letcher  (13  B.  Mon.  Ky.  363), 

Idle. 

,  Littell  v.  (56  Ark.  139),  267. 

v.  Lloyd  (117  111.  597),  35!". 

v.  M'Dougal  (32  Miss.  179),  445a. 

v.  McMichael  (12  Rich.  S  C  Law. 

176),  259. 


TABLE  OF  CASES. 


Ixvii 


Jones,  Manning  v.  (Busb.  N.  C.  Law, 

368),  150. 

v.  Marcy  (49  Iowa,  188),  272. 

,  Mobile  R.  K.  v.  (57  Ga.  198),  165. 

,  Morphett  v.  (1  Swanst.  172),  448, 

454,  456,  476. 

v.  Palmer  (1  Doug.  Mich.  379), 

391. 

v.  Pashby  (67  Mich.  469),  75. 

v.  Pease  (21  Wise.  644),  465,  475. 

v.  Peterman   (3  Serg.  &   R.   Pa. 

643)  38,  456,  461,  467,  477. 

v.  Pouch  (41  O.  St.  146),  278. 

,  Proctor  v.  (2  Carr.  &  P.  532),  325. 

v.  Reynolds  (120  N.  Y.  213),  298. 

17.  Robinson  (1  Exch.  456),  166a. 

,  Hodgers  v.  (129  Mass.  420),  317. 

,  Hosenberger   v.    (118  Mo.   569), 

229,  467. 

v.  Shorter  (1  Kelly,  Ga.294),  161c. 

v.  Slubey  (5  Harr.  &  J.  Md.  372), 

100,  102. 
,  Smith  v.  (7  Leigh,  Va.  165),  369, 

382. 

v.  Smith  (64  N.  Y.  180),  75. 

,  Smith  v.  (66  Ga.  338),  365. 

,  Tate  v.  (16  Fla.  216),  457a. 

v.  Victoria  Dock  Co.  (2  Q.  B.  Div. 

314),  344. 
,  Warden  v.  (2  De  G.  &  J.  76), 

223. 

v.  Williams  (24  Beav.  55),  62a. 

,  Wood  v.  (35  Tex.  64),  461. 

,  Worthy  v.  (11  Gray,  Mass.  168), 

277. 
Nat.  Bank  v.  Price  (37  Neb.  291), 

269. 
Jordan,  Hewes  v.  (39  Md.  472),  316a, 

321c. 

,  Hidden  v.  (21  Cal.  92),  445a. 

,  Jellison  v.  (69  Me.  373),  118. 

v.  Norton  (4  Mees.  &  W.  155),  331. 

v.  Sawkins  (1  Ves.  Jr.  402),  411. 

,   Williams   v.    (6   Ch.    Div.   517), 

3466,  373. 

Jorden  v.  Money  (5  H.  L.  C.  207),  215a. 
Joseph,  Mays  v.  (34  O.  St.  22),  159. 

v.    Smith    (57  N.   W.   Rep.   Neb. 

1012),  200o. 

Joslin  o,  Ervien  (50  N.  J.  Law,  39),  264, 
Joy,  Barrell  «.  (16  Mass.  221),  97,98, 

99,  109. 
,  Gardner  v.  (9  Met.  Mass.  179), 

307. 
Judd  ».  Arnold  (31  Minn.  430),  17. 

v.  Mosely  (30  Iowa,  423),  96a. 

Judge,  Davis  v.  (46  Vt.  655),  75. 
Judy  17.  Gilbert  (77  Ind.  96),  476. 
Justice  17.  Lang  (42  N.  Y.  493),  345a, 

365. 
Mining  Co.,  Book  17.  (58  Fed.  Rep. 

lOfi),  135. 
Jutte,  Rees  v.  (153  Pa.  St.  56),  200a. 


K. 

Kames,  Walton  v.  (67  Cal.  255),  90. 
Kamm,  Strong  t7.  (13  Ore.  172),  269. 
Kammon,  Nippolt  v.  (39  Minn.  372), 

385. 
Kamphaus,  Evars  v.  (59  Pa.  St.  379), 

75 

Kane,  Parker  v.  (22  How.  U.  S.  1),  60. 
,  Van  Reimsdyk  v.  (1  Gall.  C.  C. 

630),  186. 
Kannoffsky,  Amory  v.  (117  Mass.  351), 

55. 
Kansas  City  R.  R.,  Hays  v.  (108  Mo. 

554),  487. 
Sewer  Pipe  Co.  v.  Smith  (36  Mo. 

App.  608),  197,212,214. 
Karr,  Walden  w.  (88  111.  49),  187. 
Kastenbine,  Saunders  v.  (6  B.  Mon. 

Ky.  17),  278,  28 la. 
Kattenburgh,  Walsh  v.  (8  Minn.  127), 

605. 
Kattenhorn,  Armstrong    v.   (11   Ohio, 

265),  452,  454,  476. 
Kaufman  o.  Cook  (114  III.  1),  483. 
v.  Farley  MTg  Co.  (78  Iowa,  679), 

3;56. 
Kay  v.  Curd  (6  B.  Mon.  Ky.  100),  376, 

385,  493,  611. 
Kaye,  Haigh  o.  (L.  R.  7  Ch.  469),  94, 

95,  100,  441a. 

Kayser,  Brown  v.  (60  Wise.  1),  272. 
Keadle  v.  Siddens  (5  Ind.  App.  Ct.  8), 

193. 

Kealy  v.  Tenant  (13  Ir.  C.  L.  394),  325. 
Kearns,  Emmott  r.  (5  Bing.  N.  R.  559), 

404. 

,  Helms  v.  (40  Ind.  124),  1666. 

,   Mountain    City    Association    v. 

(103  Pa.  St.  403),  38. 
Keate  v.  Temple  (1  Bos.  &  P.  158),  199. 
Keath   v.   Patton    (2   Stew.   Ala.   38), 

118. 
Keeler  v.  Tatnell  (23  N.  J.  L.  62),  118, 

230. 
,  Westcott  v.  (4  Bosw.  N.  Y.  564), 

165. 
Keeley,  Sonstiley  v.  (1  Fed.  Rep.  447), 

166a. 
Keener,  Malone  v.  (44    Pa.    St.  107), 

165. 

Keesling  v.  Frazier  (119  Ind.  185),161c. 
Reeves,  Searle  v.  (2  Esp.  698).  316a. 
Keith,  Sword  r.  (31  Mich.  247),  275. 
Keiwert  v.  Meyer  (62  Ind.  587),  3276. 
Keizer,  Wiggins  r.  (6  Ind.  252),  276. 
Kellar,  Sites  c  (6  Ohio,  207),  448. 
Keller  v.  Kunkel  (46  Md.  565),  90. 
Kelley,  Dnbois  r.  (10  Barb.  N.  Y.  496), 

27. 

,  Larimer  v.  (10  Kans.  228).  278a. 

r.  Schupp  (60  Wise.  76),  200a. 

,  Smith  v.  (27  Me.  237),  65. 


Ixviii 


TABLE  OF  CASES. 


Kelley  v.  Stanbery  (13  Ohio,  408),  229, 

465. 

v.  Thuey  (102  Mo.  529),  373. 

Kellogg  v.  Clark  (23  Hun,  N.  Y.  393), 

281a. 
,  Johnson  v.  (7  Heisk.  Tenn.  262), 

348,  385. 

Kellum  v.  Smith  (33  Pa.  St.  158),  90, 96. 
Kelly,  Edwards  v.  (6  Maule  &  S.  208), 

206,  208,  209. 

,  Howell  v.  (149  Pa.  St.  473),  2610. 

v.  Johnson  (34  Mo.  400),  107. 

v.  Kendall  (118  111.  650),  135. 

,  Neagle  v.  (146  111.  460),  508. 

v  Phelps  (57  Wise.  425),  135a. 

v.  Terrell  (26  Ga.  551),  291. 

,  Thornton  v.  (11  R.  I.  498),  373. 

,  Rieker  v.  (I  Greenl.   Me.  117), 

29. 

,  Watson  v.  (I  Harr.  N.  J.  517),  71. 

v.  Webster  (12  C.  B.  283),  117a, 

451. 
,  Wylie  v.  (41  Barb.  N.  Y.  694), 

320,  321. 
Kelner  v.  Baxter  (L.  R.  2  C.  P.  174), 

364. 
Kelsey  v.  Hibbs  (3  Ohio  St.  340),  161c, 

214e. 

v.  McDonald  (76  Mich.  188),  117. 

,  Randall  r.  (46  Vt.  157),  188. 

,  Yeager  v.  (46  Minn.  402),  135. 

Kemble  v.  Dresser  (1  Met.  Mass.  271), 

119. 
Kempster,  Thornton  v.  (5  Taunt.  786), 

351,  352a. 

Kendall,  Kelly  v.  (118  111.  650),  135. 
v.  Mann  (11  Allen,  Mass.  15),  90, 

91. 

Kenclig,  Miller  v.  (55  la.  174),  269. 
Kendricken,  Bugbee  v.  (130  Mass.  437), 

197. 
Kennaway  v.  Treleavan  (5  Mees.  &  W. 

498),  400. 
Kennedy   v   Gramling  (33  S.  C.  367), 

349,  376. 

v.  Kennedy  (57  Mo.  73),  91. 

,  Shamburger  v.  (1  Dev.  N.  C.  1), 

14. 
Kennegal,  Reech  v.  (1  Ves.  Sr.  123), 

442. 
Kennett  v.  Milbank  (1  Moo.  &  S.  102), 

349. 
Kenney  v.  Hews  (26  Neb.  213),  405. 

,  Welch  v.  (49  Cal.  49),  1666. 

Kennon,  Petty  v.  (49  Ga.  468),  31a. 
Kensington,  Ex  parte  (2  Ves.  &  B.  79), 

62. 
National  Bank,  Goldbeck  v.  (147 

Pa.  St.  267),  294ft. 
Kent  v.  Huskinson  (3  Bos.  &  P.  233), 

326,  326a. 

v.  Kent  (62  N.  Y.  560),  276. 

v.  Kent  (18  Pick.  Mass.  569),  278. 


Kenworthy,  Reid  v.  (25  Kans.  *701). 

384. 
v.  Schofield  (2  Barn.  &  C.  945), 

364,  369. 
Kenyon,  Eastwood  v.  (11  Ad.  &  E.  438), 

188,  511,  518. 
v.  Youlan  (53  Hun,  N.  Y.  592), 

463. 
Kephart,  Whitcomb  v.  (50  Pa.  St.  85), 

158. 

Kerlin,  Baldwin  v.  (46  Ind.  426),  385. 
Kern,  Rerick  v.  (14  Serg.  &  R.  Pa.  267), 

31. 
Kerr  v.  Hill  (27  W.  Va.  605),  255a,  269a. 

,  Moore  v.  (46  Ind.  468),  72. 

,  Overman  v.  (17  Iowa,  485),  3546. 

v.  Russell  (69  111.  66ti).  12. 

v.   Shaw   (13  Johns.  N.   Y.  2o6), 

231,  391. 

Kershow,  Whitsett  v.  (4  Col.  419),  91. 
Kessler  v.  Smith  (42  Minn.  494),  345a. 
Kessler's  Estate,  In  re  (59  N.  W.  Rep. 

Wise.  129),  118,  263. 
Ketchum,  Williams  v.  (19  Wise.  231), 

400. 
Kettle  well,  Conolly  v.  (1  Gill,  Md.  260), 

197,  198. 
Keyes  v.  Allen  et  al  (65  Vt.  667),  1666. 

v.  Dearborn  (12  N.  H.  52),  36. 

,  Mead  v.   (4  E.  D.  Smith,  N.  Y. 

510),  193. 

v.  Wood  (21  Vt.  331),  65. 

Keys,  Crowder  v.  (91  Ga.  180),  157. 
v.  Williams  (3  Younge  &  C.  55), 

62. 
Keyson  v.  School  Dist.  (35  N.  H.  477), 

234. 
Kibby  v.  Chit  wood  (4  T.  B.  Mon.  Ky. 

91),  344,  505,  509. 
Kibler,  Gilman  v.  (36  N.  H.  311),  314, 

342a. 
Kidd,  Church  v.  (3  Hun,  N.  Y.  254), 

96a. 
Kidder  v.  Hunt  (1  Pick.   Mass.  328), 

118,  127,  134,  451. 

Kiene  v.  Shaeffing  (33  Neb.  21),  279. 
Kiester  ».  Miller  (25  Pa.  St.  481),  46. 
Kilbourn,  Mundorff  v.  (4  Md.  549),  263. 
v.  Olmstead  (5  Mackey  D.  of  C. 

304),  261d. 
Kilbourne,  Clagett  v.  (1  Black,  U.  S. 

348),  259. 

Kilbreth,  Follansbe  v.  (17  111.  522),  96. 
Kilgore,  Poorman  v.  (26  Pa.  St.  365), 

467. 
Killian,  Simms  v.  (12  Ired.  N.  C.  252), 

229 

Killingbeck,  Poulter  v.  (I  Bos.  &  P. 

397),  244. 
Killmore  v.  Hewlett   (48  N.  Y.  569), 

257o,  306. 

Killough  v.  Payne  (52  Ark.  174),  212. 
Kilner,  Tempest  v.  (3  C.  B.  240),  2%. 


TABLE   OF  CASES. 


Ixix 


Kimball  v.  Comstock  (14  Gray,  Mass. 

508),  183,  184. 
v.  Morton  (1  Halst.  N.  J.  Ch.  26), 

82. 

v.  Newell   (7  Hill,  N.  Y.  116),  156. 

,  Osborne  v.  (41  Kans.   187),  131, 

276a,  460a. 

17.  Smith  (117  Pa.  St.  183),  95. 

Kimbrough,  Aycock  v.  (71  Texas,  330), 

69 
Kimmins  v.  Oldham  (27  W.  Va.  258), 

118. 
Kinard  v.  Hiers  (3  Rich.  S.  C.  Eq.  423), 

439. 

Kincaid  v.  Dormey  (47  Mo.  337),  75. 
Kine  v.  Balfe  (2  Ball  &  B.  343),  476,  616. 
King.     See  Rex. 

v.  Barnes  (109  N.  Y.  267),  261rf 

,  Batson  v.  (4  Hurlst.  &  N.  739), 

164. 

,  Brice  v.  (1  Head,  Tenn.  152),  166a. 

v.  Brown  (2  Hill,  N.  Y.  485),  118, 

126. 
,  Catling  v.  (5  Ch.  Div.  660),  373, 

505a. 

,  Crawford  v.  (54  Ind.  6),  204. 

v.  Dt-spard  (5  Wend.  N.  Y.  277), 

204,  212. 
v.  Gunnison   (4  Pa.  St.  171),  264, 

265. 
v.  Hanna  (9  B.   Mon    Ky.  369), 

1226,  275. 
,  Hawkins  r.  (2  A.  K.  Marsh.  Ky. 

548),  465. 
,  Hargrave  v.   (6  Ired.  N.  C.  Eq. 

430),  94. 

,  Hudson  i7.  (2  Tenn.  660),  352a. 

v.  Lawson  (98  Mass.  309),  38. 

,  Lyon  Mil  Met.  Mass.  411),  277. 

,  Mitchell  v.  (77  111.  462),  130. 

i'.  Smith  (33  Vt.  22),  117. 

r.  Summit  (73  Ind.  312),  156,  165. 

,  Truscott  v.  (6  N.  Y.  147),  267. 

i7.  Welcome   (5  Gray,  Mass.  41), 

118,  122n,  131,277. 

v.  Wilson  (2  Stra.  873),  212. 

Kingham,  Reader  t>.  (13  C.  B.  N.  8.  344), 

1616,  176,  188. 

Kingsbury  v.  Burnside  (58  111.  336),  111. 
Kingscote,   Elmore   v.   (5  Barn.  &  C. 

583),  376. 
Kingsley   v.  Balcome   (4  Barb.  N.   Y. 

131),  161c,  212. 

t7.  Cousins  (47  Me.  91),  137. 

r.  Holbrook  (45  N.  H.  313),  256. 

Kingston-upon-Hull,  Wells  v.  (L.  R.  10 

C.  P.  402),  20. 
Kinloch  r.  Brown  (1  Rich.  S.  C.  Law, 

223),  198. 
v  Savage  (Speers,  S.  C.  Eq.  464), 

354n,  376. 
Kinner,  First  National  Bank  v.  (I  Utah, 

100),  156. 


Kinzie,  Chicago  Dock  Co.  v.   (49  111. 

289),  135. 
Kirk,  Jacob  v.  (2  Moo.  &  R.  221),  348, 

349,  373. 

v.  Webb  (Free.  Ch.  84),  91,  93,  99. 

17.  Williams   (24  Fed.  Rep.  437), 

117. 

Kirkham,  Creel  17.  (47  111.  344),  20. 
17.  Marter   (2  Barn.  &  Aid.  613), 

155,  157. 

Kirkman,  Waul  v.  (27  Miss.  823),345a. 
Kirtland,  Wheeler  v.  (23  N.  J.  Eq.  22), 

86. 
Kisler  v.  Kisler  (2  Watts,  Pa.  323),  90, 

95. 

Kistler's  Appeal  (73  Pa.  St.  393),  95. 
Kitch,  Baxter  v.  (37  Ind   554),  271. 
Kitchell,  Moshier  v.  (87  111.  18),  199 
Kittredge,  Ulen  v.  (7  Mass.  232),  360, 

370a. 

Kleeb  v.  Bard  (7  Wash.  41),  245. 
Kleeman   v.  Collins  (9  Bush,  Ky.  460), 

136,291,  354a. 
Klein  v.  McNanmra  (54  Miss.  90),  441a, 

Appendix,  p.  608. 

,  Scharff  v.  (29  Mo.  App.  649),  508. 

Kleinsorge,  Springer  v.  (83  Mo.  152), 

369,  385. 

Klinitz  v.  Surry  (5  Esp.  267),  334. 
Klitzke,  Ortloff  v.  (43  Minn.  154),  337. 
Klock,  Walter  v.  (55  111.  362),  90,  94. 
Kloke,  Gardels  v.  (36  Neb.  493),  365. 
Klous,  Cowing  v.  (101  Mass.  449),  373. 
Klugh,  Rapley  v.  (18  S.  E.  Rep.  S.  C. 

680),  467. 
Kluse  17.  Sparks  (36  N.  E.  Rep.  Ind. 

914),  256. 

Knab,  Hooker  v.  (26  Wise.  611),  117a. 
Knapp,  Johnson  v.  (36  Iowa,  616),  1666. 
Kneeland  v.  Fuller  (51  Me.  618),  118. 
,  Rogers  v.  (10  Wend.  N.  Y.  252), 

405. 
Knickerbacker,    Harris    v.    (6    Wend. 

N.  Y.  638),  456,  471,  483,  484, 

498,  501,  618. 
Knight,  Allen  17.  (5  Hare,  272),  62. 

,  Burden  17.  (82  Iowa,  684),  509. 

v.    Crockford   (1   Esp.  188),  367, 

358. 

,  Larmon  v.  (140  111.  232),  96. 

17.   Mann   (118  Mass.   143),   316a, 

3166,  316c,  316(7,  3186. 
Knights,  Holmes  v.  (10  N.  H.  175),  16k, 

164. 

Knoll  v.  Harvey  (19  Wise.  99),  482. 
Knott  r.  Knott  (6  Ore.  142),  261rf. 
Knower,  Brock  v.  (37  Hun,  N.  Y.  609), 

as4. 

Knowles,  Coughlin  v.  (7  Met.  Mass.  67), 

122 
Knowlman  17.  Bluett  (L.  R.  9  Exch.  1, 

307),  118,  276a,  283,  289. 
Knox,  Blanton  t7.  (3  Mo.  241),  289. 


Ixx 


TABLE  OF  CASES. 


Knox,  Blanton  v.  (3  Mo.  342),  2916. 
i;.  Haralson   (2   Term.  Ch.  232), 

255.' 

,  Huntington  v.  (7  Cush.  371),  373. 

v.  McFarran  (4  Col.  586),  84,  89. 

Koch  v.  National  Building  Association 

(137111.497),  454,  477. 

v.  Williams  (82  Wise.  186),  118. 

Koehler,  Prime  v.  (77  N.  Y.  91),  204. 
Koenig  v.  Miller  Brewery  Co.  (38  Mo. 

App.  182),  46,  53. 
Kohn  v.  First  National  Bank  (15  Kane. 

*428),  172. 
Kokomo  Association,  Jones  v.  (77  Ind. 

340),  264,  353,  369. 
Koons,  Parrisli  v.  (1  Pars.  Pa.  Eq.  Gas. 

79),  17,  366. 

Koplitz  v.  Gustavus  (48  Wise.  48),  38. 
Kopp  v.  Reiter  (146  111.  447),  3546. 
Koppel,  Wolff  v.  (5  Hill,  N.  Y.  458), 

202,  213. 

Korving,  Hodges  v.  (58  Conn.  12),  365. 
Kozel  v.  Dearlove  (144  111.  23),  370a. 
Kraft  v.  Greathouse  ( 1  Idaho,  254),  508. 
Krassin,  Johnson    v.    (25  Minn.    117), 

118 

Kratz  v.  Stocke  (42  Mo.  351),  135. 
Krider  v.  Milner  (99  Mo.  145),  75. 
Kriete  v.  Myer  (61  Md.  558),  384. 
Kriger  v.  Leppel  (42  Minn.  6),  122a. 
Krohn  v.  Bauiz  (68  Ind.  277),  342,  505. 
Kronheim  v.  Johnson  (7  Ch.  Div.  60), 

106,  3466,  357. 
Krumdick,  Simpson  v.  (28  Minn.  352), 

316«,  316c,  329. 

Krutz  w.  Stewart  (54  Ind.  178),  204. 
Kuhn  v.  Brown   (1  Hun,  N.  Y    244), 

354a. 

,  Fisher  v.  (54  Miss.  480),  385. 

Kuhns  v.  Gates  (92  Ind.  66),  293,  341. 
Kunkel,  Keller  v.  (46  Md.  565),  90. 
Kurtz  v.  Cummings  (24  Pa.  St.  35),  226. 
Kuster,   Harbold   v.   (44  Pa.  St.  392), 

'236. 
Kuykendall,  Barickman  v.  (6  Blackf. 

Ind.  21),  118,  122,346,  376. 
Kyle  v.  Roberts  (6  Leigh,  Va.  495),  367. 


L. 


Labreche,  Clark  v  (63  N.  H.  397),  3186. 
Lacon  v.  Allen  (3  Drew.  582),  62a. 
v.  Mertins    (3    Atk.   1),  454,  461, 

467,  498,  515. 
Ladd,  Read  v.  (Edm.  N.  Y.  Sel.  Cas, 

100),  197. 
La  Du,  La  Du  King  Co.  v.  (36  Minn 

473),  122a. 
La  Du  King  Co.  v.  La  Du  (36  Minn 

473),  122«. 
Laffee,  Houston  v.  (46  N.  H.  505),  29 

30. 


Laflin   &    Rand   Powder   Co.  v.  Sins- 

heimer  (48  Md.  411),  172. 
Lahay  v.  City  National  Bank  (15  CoL 

339),  183. 
Laing  v.  Lee  (Spencer,  N.  J.  337),  187, 

391. 

Laird,  Waldron  v.  (65  Mich.  237),  117. 
Lake  v.  Campbell  (18  111.  106),  7. 
v.  Craddock  (3  P.  Wms.  158),  260, 

261e. 

v.  Lake  (Amb.  126),  92. 

-,  Williams  ».  (2  El.  &  E.  349),  372. 

,  Wood  v.  (Sayer,  3),  23. 

Lakeman,   Mountstephen    (L.  R.  7  Q. 

B.  196),  157a,  163,  195,  197a, 

199. 
v.  Mountstephen   (L.  R.  7  H.  L. 

17),  199,  199a. 
Lamar  v.  McNamee  (10  Gill  &  J.  116), 

46,55. 

v.  Wright  (31  S.  C.  60),  263a. 

Lamb  v.  Crafts  (12  Met.  Mass.   353), 

142,  305. 
,  Lyon  v.  (Fell,  Merc.  Guar.  App. 

III.),  388. 
— ,  Powder  River  Live  Stock  Co.  v. 

(38  Neb.  339),  279,  316a. 
-,  Reade  o.  (6  Exch.  130),  136,  511, 

518. 
Lambert,  Dickson  v.  (98  Ind.  487),  384. 

,  Sale  v.  (L.  R.  18  Eq.  1),  373. 

Lamborn,   Teeters  v.  (43  O.  St.  144), 

188. 
Lamm  y.  Port  Deposit  Association  (49 

Md.  233),  268. 
Lammott  v.  Gist   (2  Harr.  &  G.  Md. 

433),  55. 

Lamond,  Franklyn  o.  (4  C.  B.  637),  335. 
Lament,    Houser  v.  (55  Pa.   St.   311), 

135,  498. 
Lampson  v.  Hobart  (28  Vt.  697),  204, 

212 
Lamson,  Comes  v.  (16  Conn.  246),  122a, 

131. 
Lance,  Gadsden  v.  (2  Rich.  S.  C.  Law, 

73),  346.  382a. 

v.  Pearce  (101  Ind.  595),  198. 

Lance's  Appeal  (112  Pa.  St.  456),  441a. 
Landers  v.  Beck  (92  Ind.  49),  441a. 
Lane,  Ex  parte  (1  De  Gex,  300),  193. 

».  Burghart  (1  Q  B.  933),  193. 

,  Carver  v    (4  E.  D.  Smith,  N.  Y. 

168),  326,  334. 

v.  Dighton  (Amb.  409),  90. 

v.  Miller  (27  Ind.  534),  31. 

,  Robinson   v.    (14   Smedes   &   M. 

Miss.  161),  193. 
v.  Shackford   (5  N.  H.  130),  76, 

122,  451,  462. 
Landis,  Peifer  v.  (1  Watts,  Pa.  392), 

466. 
Landman,  Williams  v.  (8  Watts  &  S. 

Pa.  55),  479. 


TABLE   OF   CASES. 


Ixxi 


Laney,  Danforth  v.  (28  Ala.  274),  467, 

477. 

Lang  v.  Henry  (64  N.  H.  57),  1666,  212. 
,  Justice  t>.  (42  N.  Y.  493),  346u, 

3(55. 
Langdon  v.  Hughes    (107  Mass.  272), 

193. 

v.  Richardson  (58  Iowa,  610),  197. 

Langford  v.  Freeman  (3  T.  K.  51),  181. 
,  Hindman  v.  (3  Strobh.  S.  C.  Law, 

207),  202. 

Langfort  v.  Tiler  (1  Salk.  113),  341. 
Langston,  Ex  parte  (17  Ves.  228),  62. 
Lansing,  Cagger  v.  (43  N.  Y.  550),  117, 

364o. 

,  Cagger  v.  (57  Barb.  N.  Y.  421), 

3546. 
Lansingburgh   Bk.  v.  Crary   (1  Barb. 

N.  Y.  542),  236. 

Lantry  v.  Lantry  (51  111.  458),  94. 
Lanz  i:  McLaughliii  (14  Minn.  72),  344, 

345a. 
Lapham,   Chapin   v.    (20   Pick.   Mass. 

467),  156,  158,  161c. 

v.  Osborne  (20  Nevada,  168),  118. 

v.    Whipple   (8  Met.   Mass.   69), 

278,  283. 

Larimer  o.  Kellev  (10  Kans.  228),278a. 
Larkin  ».  A  very"  (23  Conn.  313),  37. 
Larkins  v.  Rhodes  (5  Port.  Ala.  195), 

86,93. 

Larmon  v.  Knight  (140  HI.  232),  96. 
Larrabee,  Withers  r.  (48  Me.  570),  38. 
Larsen  v.  Johnson  (78  Wise.  300),  116. 
Larson  v.  Jensen  (53  Mich.  427),  198, 

199. 
v.  Wyman  (14  Wend.  N.  Y.  246), 

191,  197,  198. 

Lash  v.  Parlin  (78  Mo.  39),  373. 
Lasher  v.  Gardner  (124  111.  441),  344. 
Lassence  i:  Tierney  (1  McN.  &  G.  551), 

459a. 
Latcham,  Greene  v.  (2  Col.  Ct.  of  App. 

416),  197. 
Latham,  McGaughey  Bros.  v.  (63  Ga. 

67),  197. 
Lathrop   v.  Hoyt  (7  Barb.  N.  Y.  59), 

90. 
Lauer  v.  Richmond  Institution  (8  Utah 

305),  31%,  508. 
Lauter,  Baker   Bros.   v.   (68  Md.  64), 

118. 

Lavalle,  Moritz  v.  (77  Cal.  10),  230. 
Lavender  v.  Blakstone   (2   Lev.  147), 

223. 
Lavery  v.    Pursell  (L.  R.  39   Ch.   D. 

608),  234. 

v.  Turley   (6  Hurlst.  &  N.  239) 

11. 
Law,  Barry  v.  (1  Cranch,   C.  C.  77), 

178,  355,  363. 

,  Greenwood  v.  (26  Atl.  Rep.  N.  J 

134),  298. 


Law,  Greenwood  v.  (56  N.  J.  Law  168), 

297. 
Lawes,    Pulbrooke    r.    (1   Q.   B.   Div. 

284),  117a,  119. 
Lawrence  v.  Blow  (2  Leigh,  Va.  29), 

223 
v.  Chase  (54  Me.  196),  266,  508, 

609. 

v.  Cooke  (56  Me.  187),  272,  279. 

i-.  Dole  (11  Vt.  549),  435. 

-  v.  Fox  (20  N.  Y.  268),  1666. 

,  Rives  v.  (41  Ga.  283),  96. 

v.  Smith  (27  How.  N.  Y.  Pr.  327), 


v.  Stratton  (6  Cash.  Mass.  163), 

60. 

v.  Taylor  (5  Hill,  N.  Y.  107),  370o. 

v.  Woods   (4   Bosw.  N.  Y.  354), 

283. 
Lawrence  County  Bank,  Moses  v.  (149 

U.  S.  298),  191,  403. 
Lawrenson  v.  Butler  (I  Schoales  &  L. 

13),  366. 
Lawson,  Armstrong   v.  (73  Ind.  498), 

256,  269a. 
— ,  Hughes  v.  (31  Ark.  613),  187. 

,  King  v.  (98  Mass.  309),  38. 

,  Ordeman  v.  (49  Md.  135),  391. 

Lawton,  Clapp  v.  (31  Conn.  95),  166a, 

188,  2146. 
-,  Reynolds  v.  (62  Hun.  N.  Y  596), 

1666. 

— ,  Spencer  v.  (14  R.  I.  494),  96. 
Laythoarp  v.  Bryant    (2    Bing.  N.  R. 

736),  3466,  365,  373. 
Lea  v.  Barber  (2  Anst.  425,  note),  141. 

,  Price  e.  (1  Barn.  &  C.  156),  335. 

Leach,  Bostwick  v.  (3  Day,  Conn.  476), 

234,  255a,  269. 
Leachman,  Perrine   v.  (10  Ala.   140), 

505. 
Leadbitter,  Wood  v.  (13  Mees.  &  W. 

838),  23,  24. 
Leaf  v.  Tuton   (10  Mees.  &  W.  393), 

511,  618. 

League  v.  Davis  (53  Tex.  9),  508. 
Leahey  r.  Leahey  (11  Mo.  App.  413), 

441. 
Leak    v.    Morrice    (2   Cas.   Ch.   135), 

446 

Leake  v.  Ball  (116  Ind.  214),  188. 
Leaper  v.  Tatton  (16  East,  420),  137. 
Lear  v.  Chouteau  (23  111.  39),  508. 
Leary,  Pennybacker  v.  (65  Iowa  220), 

262. 
Leather  Cloth  Co.  v.  Hieronimus   (L. 

R.  10  Q.  B.  140),  138?,  425. 
Leavitt,  Carr  v.  (54  Mich.  540),  269. 

,  Phillips  v.  (54  Me.  405),  267. 

«;.  Pratt  (53  Me.  147),  267. 

Stansell  v.  (51  Mich.  536),  141. 

Le  Bret,  Hodgson  v.  (1  Camp.  233), 

326,  336. 


Ixxii 


TABLE   OF  CASES. 


Le  Clair,  Goodland  v.  (78  Wise.  176), 

298. 
Le  Compte,  Webster  v.  (74  Md.  249), 

116,  193. 
Lecat  v.  Tavel  (3  McCord,  S.  C.  Law, 

158),  391,  40(5,  407. 
Lechmere  v.  Fletcher  (1  Cromp.  &  M. 

623),  349. 
Ledbetter   v.  McGliees   (81   Ga.  227), 

187. 
Ledford  v.  Ferrell  (12  Ired.  N.  C.  285), 

266. 

Lee  v.  Cheney  (85  Teun.  707),  345a, 
354a. 

,  Evans  v.  (12  Nev.  393),  483. 

v.  Fontaine  (10  Ala.  755),  187. 

v.  Griffin  (1  Best  &  S.  272),  308, 

309a. 

. v.  Hills  (66  Ind.  474),  375a. 

,  Hutchins  v.  (1  Atk.  447),  82,  111. 

,  Laing  v.  (Spencer,   N.   J.   337), 

187,  391. 

v.  Lee  (9  Pa.  St.  169),  486. 

v.  McLeod  (12  Nev.  280),  29. 

r.  Porter  (18  Mo.  App.  377),  1666. 

v.  Risdon  (7  Taunt.  191),  236. 

,  Savage  v.  (101  Ind.  514),  76,  135, 

471. 

v.  Stowe  (57  Texas,  444),  135. 

,  Sweet  v.  (3  Man.  &  G.  452),  289, 

362,  388. 

,  Tapp  t-.  (3  Bos.  &  P.  367),  181. 

,  Webber  v.  (L.  R.  9  Q.  B.  315), 

26. 

,  Wousettlerv.  (40  Kans.  367),  118. 

Leeder,  Biddell  v.  (1   Barn.  &  C.  327), 

142. 
Leeds,  Rhodes  v.   (3  Stew.  &  P.  Ala. 

212),  195. 

Leeman  O'Donnell  v.  (43  Me.  158),  348. 
Lees  v.  Nuttall  (1  Russ.  &  M.  53),  96, 
111. 

v.  Whitcomb  (5  Bing.  34),  401. 

Leeson,  Gaddis  v.  (55  III.  83),  342«. 
Le  Fevre  v.  Le  Fevre  (4  Serg.  &  R.  Pa. 

241),  31. 
Leftwich,    Anthony   v.    (3  Rand.    Va. 

448),  490. 

Legal  v.  Miller  (2  Ves.  Sr.  299),  501. 
Legg  v.  Strudwick  (2  Salk.  414),  35. 
Legge,  Grimman  v.  (8  Barn.  &  C.  324), 

55. 
Leggett,  Schuyler  v.   (2  Cowen,  N.  Y. 

660),  38,  39. 

Legh  v.  Haverfield  (5  Ves.  452),  501. 
Lehman  v.  Collins  (69  Ala.  127),  64. 

,  Eberly  v.  (100  Pa.  St.  542),  467. 

Lehnen,  Glenn  v.  (54  Mo.  45),  199. 
Lehow  v.  Simonton  (3  Col.  346),  505. 
Leinau   v.   Smart    (11    Humph.   Tenn. 

308),  269. 

Leland  v.  Creyon   (1   McCord,   S.   C. 
Law,  100),  197,  198. 


Leland,  Warren  v.  (2  Barb.  N.  Y.  613), 

236),  256. 
Leraan  v.  Whitley   (4  Russ.  423),  95, 

111. 
Leinasters,  Moreland  v.  (4  Blackf.  Ind. 

383),  487. 
Lemayne  v.  Stanley  (3  Lev.  1),  9,  355, 

357. 
Le  Mesurier,  Logan  v.   (6  Moo.  P.  C. 

116),  336. 
Lemmon,  Boring  v.  (5  Harr.  &  J.  Md. 

223),  78. 

Lenfers  v.  Henke  (73  111.  405),  230. 
Lenheim  v.  Fay  (27  Mich.  70),  131. 
Lente  v.  Clarke  (22  Fla.  515),  385. 
Leonard   v.  Clough    (133  N.  Y.   292), 

269a. 

v.  Davis  (1  Black,  U.   S.  476), 

319. 

v.  Mason  (1  Wend.  N.  Y.  522), 

172. 

v.  Vredenburgh  (8  Johns.  N.  Y. 

29),  171    191,  212,  214«,  391, 

407. 
Leper,  Williams  v.  (3  Burr.  1886),  205, 

206,  505a. 

Leppel,  Kriger  v.  (42  Minn.  6),  122a. 
Lequeer  v.  Prosser  (1  Hill,  N.  Y  256), 

406. 

Lerch  v.  Gallup  (67  Cal.  595),  159. 
Lerned    v.    Wannemacher    (9    Allen, 

Mass.  412),  344,  348,  356,  424. 
Leroux  v.  Brown  (12  C.  B.  801),  136. 
Lester  v.  Foxcroft  (Colles,  P.  C.  108), 

442. 

v.  Heidt  (86  Ga.  226),  384. 

v.  White  (44  111.  464),  228. 

,  Wilson  v.  (64  Barb.  N.  Y.  431), 

56. 
Letcher  v.  Cosby  (2  A.  K   Marsh.  Ky. 

206),  129. 
,  Jones  v.  (13  B.   Mon.  Ky.  363), 

161c. 

Levan,  Grant  r.  (4  Pa.  St.  393),  354. 
Leven  v.  Smith  (1  Denio,  N.  Y.  571), 

326. 
Levi,  Clark  v.  (10  N.  Y.  Leg.  Obs.  184), 

156 
Levy,  Acebal  v.  (10  Bing.  376),  377. 

v.  Brush  (45  N.  Y.  589),  96. 

v.  Merrill  (4  Greenl.  Me.  180),  391. 

,  White  v.  (93  Ala.  484),  509. 

Lewis,  Chenoweth   v.    (11   Rep.   380), 

229. 

,  Conner  v.  (16  Me.  268),  89.     ' 

,  Fobes  v.  (3  N.  Y.  W'kly  Dig.  65), 

63. 
,  Fowler  v.  (3  A.  K.  Marsh.  Ky. 

443),  511. 
,  Mersereau  v.  (25  Wend  N.Y.  243), 

188. 

,  Owens  v.  (46  Ind.  488),  256.  267a 

v.  Payn  (8  Cowen,  N.  Y.  71),  59. 


TABLE   OF  CASES. 


Ixxiii 


Lewis  v.  Starke  (10  Smedes  &  M.  Miss. 

120),  65. 

o.  Wells  (50  Ala.  198),  376. 

v.  Wood  (153  Mass.  321),  373. 

Lewiston  Mill  Co.,  Wilson  v.  (74  Hun, 

N.  Y.  612),  3466. 

Lexington  v.  Clarke  (2  Vent.  223),  146. 
Leyburn,  Price  v.  (Gow,  109),  116, 117, 

233. 

Libby,  Dyer  v.  (61  Me.  45),  325. 
Liehtenberg,  Gilbert  v.  (98  Mich.  417), 

334. 

Liddard,  Stead  v.  (1  Bing.  196),  400. 
Liddell,  Chicago  Coal  Co.  v.  (69  111. 

639),  157,  511. 
Liddle  v.  Needham  (39  Mich.  147),  117, 

1176. 

Life,  Dewey  r.  (60  Iowa,  361),  616. 
Liggett  c.  Collier  (56  N.  W.  Rep.  Iowa, 

417),  3276. 

Liggins  u.  Inge  (7  Bing.  682),  27a. 
Lill,  Stapp  v.  (1  Camp.  242),  400. 

,  Stadt  v.  (9  East,  348),  400. 

Lilley  v.  Hewitt  (11  Price,  494),  518. 
Lillie  v.  Dunbar  (62  Wise.  198),  257. 
Lilly  white  v.  Devereux  (15  Mees.  &  W. 

285),  3196,  321. 
Lilwal,  Dickerson   c.   (1   Stark.  128), 

351. 
Lincoln  v.  Erie  Preserving   Co.    (132 

Mass.  129),  372. 
,  Hinchman  v.  (124  U.  S.  38),  296a, 

317a,  319«,  321. 

v.  Wright  (4  De  G.  &  J.  16),  479. 

Lindley  v.  Simpson  (45  111.  App.  Ct. 

648),  1666. 
Lindsay,  Gull  v.  (4  Excli.  45),  193,  203. 

v.  Jaffray  (55  Tex.  626),  209. 

v.  Lynch  (2  Schoales  &  L.  1),  385, 

454,  492,  501,  502. 

v.  Springer  (4  Harr.  Del.  547),  75. 

Limlsley  v.  Coates  (1  Ohio,  243),  76. 
Lingan  v.  Henderson  ( 1  Bland,  Md.  Ch. 

236),  508. 

Linn  r.  McLean  (85  Ala.  250),  370a. 
Linn  Boyd  Co.  v.  Terrill  (13  Bush,  Ky. 

463),  384. 
Linscott  i>.  Mclntire  (15  Me.  201),  261a, 

278,  281«. 

Linsloy  v.  Tibbals  (40  Conn.  622),.°>71n. 
Linthicurn,  Beard  v.  (1  Md.  Ch.  Dec. 

345),  456,  493. 
,  Remington  v.  (14  Pet.  U.  S.  84), 

78,  354. 
Linthorne,  Rayner  v.  (Ryan  &  M.  825), 

351,  367. 

Lipp,  Hunt  v.  (30  Neb.  469),  486. 
Lippincott  v.  Ashfield  (4  Sandf.  N.  Y. 

611),  187. 
Lisk  v.  Sherman  (25  Barb.  N.  Y.  433), 

126. 

Litchford,  Oldhnm  r.  (2  Vern.  506),  94. 
Littell  v.  Jones  (56  Ark.  139),  267. 


Little,  Bishop  v.  (5  Greenl.  Me.  362), 

268. 

,  Conant  v.  (1  Pick.  Mass.  189),  77. 

,  Deniston  v.  (2  Schoales  &  L.  11, 

note),  501. 

v.  Dougherty  (11  Col.  103),  352. 

v.  Edwards  (69  Md.  499),  165. 

».  Martin  (3  Wend.  N.  Y.  219), 

125. 

v.  McCarter  (89  N.  C.  233),  263a. 

,  Williams  v.  (35  Me.  323),  1666. 

Littlejolm,  Ex  parte  (3  M.  D.  &  De  G. 

182),  143. 
Livermore  r.  Aldrich  (5  Cush.  Mass. 

431),  85,92,93. 
Liverpool,  Birch  v.  (9  Barn.  &  C.  392), 

282. 
Liverpool  Wharf  v.  Prescott  (4  Allen, 

Mass.  22),  75 
Livingston,  Hall  v.  (3  Del.  Ch.  365),  81. 

,  Hayes  v.  (34  Mich.  384),  457a. 

,  Reade  v.  (3  Johns.  N.  Y.  Ch.  481), 

223. 
Lloyd  v.  Attwood  (3  De.  G.  &  J.  614), 

62. 

,  Bullock  v.  (2  Car.  &  P.  119),  159. 

v.  Conover  (Dutch.  N.  J.  47),  71. 

v.  Hollenback  (98  Mich.  203),  487. 

,  Jones  v  (117  111.  697),  354u. 

v.  Spillet  (2  Atk.  148),  84. 

Lloyd's  Appeal  (82  Pa.  St.  485),  136. 
Lobdell  r.  Mason   (15  So.  Rep.  Miss. 

44),  14. 
Locke  v.  Alexander  (1  Hawks,  N.  C. 

412),  13. 

,  Byers  v.  (93  Cal.  493),  269. 

v.  Humphries  (60  Ala.  117),  187. 

,  Walker  v.  (5   Cush.  Mass.    90), 

507a. 
Lockey   r.  Lockoy  (Finch,  Prec.  Ch. 

518),  469. 
Lockwood  v.  Barnes  (3  Hill,  N.  Y.  128), 

118, 119,  122,  279,  280,  289. 

,  Calkins  v.  (17  Conn.  174),  319, 320. 

Loder,  Trueman  v.  (11  Ad.  &  E.  689), 

351. 

Loeber,  Schroeder  v.  (76  Md.  195),  118. 
Loffus  v.  Maw  (3  Giff.  5P2),  463. 
Logan   v.    Anderson    (2   Doug.    Mich. 

101),  65. 

v.  Barr  (4  Harr.  Del.  546),  46. 

,  Gregory  r.  (7  Blackf.  Ind.  112), 

391. 

,  Helm  v.  (4  Bibb,  Ky.  78),  271. 

v.  Le    Mesnrier    (6  Moo.   P.   C. 

116),  336. 
,  Troy   Fertilizer   Co.  v.  (96  Ala. 

619),  346. 

Logsdon  v.  Newton  (54  Iowa,  448).  354. 
Lomas,  Toppin  v.  (16  C.  B.  145),  229, 

266. 
London  Hotel  Co.,  Beer  v.  (L.  R.  20 

Eq.  412),  373. 


Ixxiv 


TABLE   OF  CASES. 


Long,  Cherry  v.  (Phil.  N.  C.  Law,  466), 

384. 
,  Franklin  v.  (7  Gill  &  J.  Md.  407), 

319a. 
v.  Hartwell  (34  N.  J.  Law,  116), 

425. 
v.  Millar   (L.  R.  4  C.  P.  D.  460), 

348,  349. 

,  Miller  v.  (45  Pa.  St.  350),  156. 

,  Rentch  v.  ('2.1  Md.  188),  302. 

,  Townsend   v.  (77   Pa.   St.   143), 

1666. 
,  Wallace   v.    (105  Ind.  522),  463, 

466. 

v.  White  (42  0.  St.  59),  234. 

Longee,  Rafferty  v.  (63  N.  H.  54),  3466, 

355 
Long  Island"  R.  R.,  Pitkin  v.  (2  Barb. 

N.  Y.  Ch.  221),  276a. 
Longnor,  Rex.  v.  (4  Barn.  &  Ad.  647), 

Longstreet,  Woodhull  v.  (3  Harr.  N.  J. 

405),  71. 
Lookout    Mt.   R.   R.   v.   Houston   (85 

Tenn.  224),  212. 
Loomis  v.  Loomis  (60  Barb.  N.  Y.  22), 

95. 
,  Nat.  Fire  Ins.  Co.  v.  (11  Paige, 

N.  Y.  431),  365. 
v.  Newhall   (15  Pick.  Mass.   159), 

147,  187,  191. 

v.  Smith  (17  Conn.  115),  198. 

,  Smith  v.  (74  Me.  503),  426. 

Lord  v.  Davison  (3  Allen,  Mass.  131), 

193. 
,  Onderdonk  v.  (Hill  &  D.  N.  Y. 

129),  231. 

Lord  Gray's  Case  (Freem.  Ch.  6),  91. 
Lord  Vane,  Ogle  v.  (L.  R.3  Q  B.  272), 

426. 

Lord's  Appeal  (105  Pa.  St.  451),  493. 
Lorentz,  Miller  v.  (19  S.  E.  Rep.  W. 

Va.  391),  461,  474. 
Lorick,  Louisville  Co.  v.  (29  S.  C.  533), 

349. 

Lorillard,  Erben  v.  (19  N.  Y.  299,)  126. 
Los  Angeles  Gas  Co.,  Elbert  v.  (97  Cal. 

244,  348. 
Lessee  v.  Williams  (6  Lans.  N.  Y.  228), 

165. 
Lotton,  Smith  v.  (5  Ind.  App.  Ct.  177), 

118. 
Loucks,  Parsons  v.  (48  N.  Y.  17),  302, 

306. 
Loughran  v.  Giles   (110   N.   C.   423), 

508. 
Louisville  Co.  v.  Lorick  (29  S.  C.  533), 

349. 
Prize  Mining  Co.  v.  Scudder  (3 

Col.  152),  504. 
R.  R.  v.  Caldwell  (98  Ind.  245), 

172. 
Love  v.  Welch  (97  N.  C.  200),  365. 


Lovegrove,  Powell  v.  (8  De  G.  M.  &  G. 

357),  376. 

Lovejoy,  Rigney  v.  (13  N.  H.  247),  65. 
Loving  v.  Dixon  (56  Tex.  75),  164. 
Low  v.  Andrews  (1  Story,  C.  C.  38), 

136. 

v.  Treadwell  (12  Me.  441),  411. 

Lowber  v.  Connit  (36  Wise.  176),  345a. 
Lowe  v.  Hamilton  (132  Ind.  406),  2146, 

534. 
v.  Harris  (17  S.  E.  Rep.  N.  C.  539), 

385. 

,  Jackson  v.  (1  Bing.  9),  3466. 

,  Turpie  v.  (114  Ind.  37),  188,  270. 

Lowell,  Blodgett  v.  (33  Vt.  174),  199. 
,  Chase  v.  (7  Gray,  Mass.  33),  346, 

376. 
Lower  v.  Winters   (7   Cowen,   N.   Y 

263),  231,  233,  283. 

Lowman  v.  Sheets  (124  Ind.  416),  143. 
Lowry  v.  Mehaffy  (10  Watts,  Pa.  387), 

366. 
Lowther,  Farwell  v.  (18  111.  252),  373, 

376. 

Luark  v.  Malone  (34  Ind.  444),  204. 
Lucas  v.  Chamberlain  (8  B.  Mon.  Ky. 

276),  161c. 
v.  Dixon  (L.  R.  22  Q.  B.  U.  357), 

352a. 

,  McDowell  v.  (97  111.  489),  465. 

v.  Mitchell  (3  A.  K.  Marsh.  Ky. 

244),  130. 

v.  Payne  (7  Cal.  92),  187. 

Luce,  Thayer  o.  (22  Ohio  St.  62),  344, 

345a,  348,' 354,  373. 
Luckett  v.  Williamson  (37  Mo.  388), 

515. 

Luders  v.  Anstey  (4  Ves.  501),  216a. 
Ludlum,  Buckingham  v.  (37  N.  J.  Eq. 

137),  118. 

,  McElroy  v.  (32  N.  J.  Eq.  828), 

118,  126,  460a. 

Luey  v.  Bundy  (9  N.  H.  298),  118. 
Luhring,  Clifford  v.  (69  111.  401),  199a. 
Lukens,  Hitchcock  v.  (8  Port.  Ala.  333), 

187. 
Lumber  Co.,  Clark  v.  (86  Ala.  220),  181. 

,  Hagadorn  v.  (81  Mich.  566),  197. 

Lumley,  Ward  v.  (5  Hurlst.  &  N.  88), 

44. 
Lumsden,  Hughes  v.  (8  Brad.  III.  App. 

Ct.  185),  135. 
Lundin,  Pressnell   v.   (44   Minn.  551), 

118. 
Lundy,  Baylies  v.  (4  L.  T.  N.  s.  176), 

326,  333. 

Lunt,  Coffin  v.  (2  Pick.  Mass.  70),  32. 
Lutter  County  Co.,  Salfield  v.  (94  Cal. 

546),  370«. 
Luzader  v.  Richmond  (128  Ind.  344), 

354a. 
Lyde   v.   Barnard   (Tyrw.  &  G.  250), 

181,  182. 


TABLE   OF  CASES. 


Ixxv 


Lydick  r.  Holland  (83  Mo.  783),  457, 

460. 

Lyman  v.  Lyman  (133  Mass.  414),  117. 
Lynch,  Benedict  v.  (I  Johns.  N.  Y.  Ch. 

370),  366. 
t  Lindsay  v.  (2  Schoales  &  L.  1), 

385,  454,  492,  501,  502. 
Lynch,  Miller  v.  (17  Ore.  61),  193. 
v.  Scroth   (50  111.  App.  Ct.  668), 

608. 
Lynde,  Burns  v.  (6  Allen,  Mass.  305), 

126, 146. 
Lynn,  Marshal  v.  (6  Mees.  &  W.  109), 

380,  414,  418. 
Lyon,  Goodwin  v.  (4  Port.  Ala.  297), 

490,  493. 

v.  King  (11  Met.  Mass.  411),  277. 

v.  Lamb  (Fell,  Merc.  Guar.  App. 

III.),  388. 
v.  Reed  (13  Mees.  &  W.  285),  43, 

48,  50,  53. 
Lyons  v.  Daugherty   (26  S.  W.  Rep. 

Tex.  146),  204 
Lysaght  v.  Walker  (5  Bligh,  N.  s.  1), 

403,  518. 
Lysle  v.  Williams  (15  Serg.  &  R.  Pa. 

135),  36. 
Lytle,  Rowan  v.  (11  Wend.  N.  Y.  616), 

44,46. 


M. 

Maban,  Watson  v.  (20  Ind.  223),  463. 
Maberley  v.  Sheppard  (10  Bing.  99), 

816rf,  321c. 

McAfee,  Click  v.  (7  Port.  Ala  62),  193. 
McAlpiue,  Union  Pacific  R.  R.  v.  (129 

U.  S.  305),  448,  475. 
McAuliffe,  Clarke  v.    (81    Wise.  108), 

261n,  261/ 
McAnnulty  e.  McAnnulty  (120111.  126), 

344,  352a. 

McBrayer  v.  Cohen  (92  Ky.  479),  350. 
McBurney  v.  Wellman  (42  Barb.  N.  Y. 

390),  441. 
McCabe   v.   Fitzpa  trick   (2  Leg.   Gaz. 

138),  270. 
McCafferty   v.   Griswold    (99   Pa.   St. 

270),  119,  226. 
McCaffil   ».    Radcliffe  (3  Rob.   N.  Y. 

445),  195. 

McCagg,  Dennis  v.  (32  III  429),  96. 
McCahill,  Jansen  v.  (22  Cal.  563),  126. 
McCaig,  Cresswell   v.    (11   Neb.   222), 

135. 
McCampbell  v.   McCampbell    (5  Litt. 

Ky.  92),  120. 
McCandless  v.  Warner  (26  W.  Va.  754). 

98. 

McCann  v.  Pennie  (100  Cal.  547),  505. 
McCarter,  Little    v.   (89  N.  C.  233), 

263a. 


McCarthy,  Carr  ».  (70  Mich.  258),  276 

-r.  Pope  (52  Cal.  661),  117. 
McCarty,  Horton  v.  (53  Me.  394),  353a. 
M'CasIand,  Gibbons  v.  (I  Barn.  &  Aid. 

690),  137. 
M'Cauley,  Eichelberger  v.  (5  Harr.  & 

J.  Md.  213),  307. 
MeCauley,  Guynn  v.  (32  Ark.  97),  467, 

508 

-,  Huff  v.  (53  Pa.  St.  206),  81,  245. 
McChesney,  Corbin  v.  (26  111.  231),  187, 

193. 
McClain,  McClain  v.  (57  Iowa,  167),  94, 

439. 

-  ,  Moses  V.  (82  Ala.  370),  365. 
McClellan,  Hart  v.  (41  Ala.  251),  507. 

-  v.  Sanford  (26  Wise.  695),  289. 
McClintock,  Dodge  v.  (47  N.  II.  383), 

29. 

-  v.  South  Penn.  Oil  Co.  (146  Pa. 

St.  144),  17. 
McClintock's  Appeal  (71  Pa.  St  365), 

255a,  257a. 
McClure    v.  Doak    (6   Baxter   Tenn., 

364),  84. 

-  r.  McClure  (1  Pa.  St.  374),  475. 

-  v.  Otuch  (118  111.  320),  508. 
M'Clure,  Patton  v.  (Mar.  &  Y.  Tenn. 

333),  448. 
MacCollogh,  Magennis   v.  (Gilb.   Cas. 

235),  44. 
McCollough,  Wallace  v.  (1  Rich.  S.  C. 

Eq.  426),  10. 
McComb,  Jennings  v.  (112  Pa.  St.  518), 

126. 

-  v.  Wright  (4  Johns.  N.  Y.   Ch. 

659),  369. 
McConahey  v.  Griffey  (82  Iowa,  564), 

275. 
McConnell  v.   Brillhart   (17  111.   354), 

357. 

-  v.  Hodson  (2  Gilm.  111.  640),  65. 

-  ,  Reed  r.  (62  Hun,  N.  Y.  153),  508. 
McCord,  Martin  v.  (6  Watts,  Pa.  493), 

487. 
McCormick    v.    Cheevere   (124  Mass. 

262),  269. 
McCormick's  Appeal  (57  Pa.  St.  54), 


McCray,  Holmes  r.  (61  Ind.  358),261d, 
262. 

-  v.  Madden  (1  McCord,  S.  C.  Law, 

486),  209. 

McCrea,  Bull  v.  (8  B.  Mon.  Ky.  422), 
276. 

-  v.  Marsh  (12   Gray,  Mass.  211), 

24. 
M'Crea  v.  Purmort  (16  Wend.  N.  Y. 

460),  366. 

McCrowell  v.  Burson  (79  Va.  290),  118 
MacCubbin  v.  Cromwell   (7  Gill  &  J 

Md.  157),  97,  98,  100,  102. 
McCue  v.  Smith  (9  Minn.  262),  116. 


Ixxvi 


TABLE   OF   CASES. 


McCulloch,  Boyce  v.  (3  Watts  &  S.  Pa. 
429),  435. 

v.  Cowher  (5  Watts  &  S.  Pa.  427), 

94,  95. 

McCulloh,  Gordon  v.  (66  Md.  245),  97. 
McCunn,  Darlington  v.  (2  E.  D.  Smith, 

N.  Y.  411),  197. 
McDermott,  Sharkey  v.  (91  Mo.  647), 

463. 
McDermot   v.   Butler   (5  Halst.  N.  J. 

Law,  158),  65. 
McDonald,  Hertle  v.  (2  Md.  Ch.  128), 

90. 

,  Kelsey  v.  (76  Mich.  188),  117. 

,  McKowea  v.  (43  Pa.  St.  44),  226, 

467. 

v.  Maltz  (78  Mich.  685),  269. 

17.  Youngbluth  (46  Fed.  Rep.  836), 

441<f,  444a. 
McDonnell,   Showalter  v.  (83   Texas, 

158),  000. 
McDonough  v.  O'Niel  (113  Mass.  92), 

90. 
,  Safford  v.  (120  Mass.  290),  3186, 

323 

v.  Squire  (111  Mass.  217),  441a. 

McDouall,  Skinner  v.   (2  De  G.  &  S. 

265),  511,  519. 
M'Dougal,   Jones    v.    (32    Miss.   179), 

445a. 
McDowel  v.  Chambers  (1  Strobh.  S.  C. 

Eq.  347),  352. 
McDowell  v.  Lucas  (97  III.  489),  465. 

v.  Oyer  (21  Pa.  St.  417),  124,  226. 

v.  Simpson  (3  Watts,  Pa.  129),  17, 

38. 

McDuff,  Hall  v.  (1  Gill,  Md.  383),  518. 
McElderry  ».  Shipley  (2  Md.  25),  84. 
McElrath,   Osment   v.   (68    Cal.    466), 

278a. 
McElroy  r.  Bradden  (152  Pa.  St.  81), 

268. 

r.  Buck  (35  Mich.  438),  376. 

o.  Ludlum  (32  N.  J.  Eq.  828),  118, 

126,  460a. 

v.  Seery  (61  Md.  389),  372. 

v.  Swope  (47  Fed.  Rep.  380),  262. 

McEwan  v.  Ortman  (34  Mich.  325),  267. 
McEwen,  Sims  v.  (27  Ala.  184).  118. 
McFaddin,  Vanmeter  v.  (8  B.  Mon.  Ky. 

435),  64. 
M'Farland  v.  Hall  (3  Watts,  Pa.  37), 

466 

McFarland,  Scott  v.  13  Mass.  309),  229. 
McFarran,  Knox  v.   (4  Col.  586),  84, 

89. 
M'Farson's   Appeal  (11  Pa.  St.  603), 

376,  382. 
McGaughey  Bros,  v.  Latham  (63  Ga. 

67),  197. 
McGhees,   Ledbetter  v.  (84  Ga.  227), 

187. 
McGill  v.  Dowdle  (33  Ark.  311),  164. 


McGill,  Heft  v.  (3  Pa.  St.  256),  490. 
McGinnis  v.  Cook  (57  Vt.  36),  117. 

v.  Fernandes  (126  111.  228),  133. 

McGlone,  Haines  v.  (44  Ark.  79),  476. 
McGovern   v.   Hern   (153  Mass.   308), 

373. 
McGowan  r.  McGowan  (14  Gray,  Mass. 

119),  84. 
McGowen  v.  West  (7  Mo.   569),  1226, 

498. 

McGowern  v.  Duff  (12  X.  Y.  680),  24. 
McGrath,  Bloom  v.  (53  Miss.  249),  199. 

,  Dent  v.  (3  Bush,  Ky.  176),  181. 

McGraw    v.    Franklin   (2   Wash.  17), 

188. 
McGregor  v.  McGregor  (L.  R.  21  Q.  B. 

D.  424),  277. 

,  Turnley  v.  (6  Man.  &  G.  46),  Ap- 
pendix, p.  583. 
McGregory,  Fiske   v.  (34   N.  H.  414), 

188. 
McGroarty,  Hawkins  v.  (110  Mo.  546), 

370a. 
McGruder,   Johnson   v.  (15  Mo.   365). 

370a. 
McGuigan,  Walters  v.  (72  Wise.  155), 

269. 
McGuin,   Stewart  v.  (1  Cowen,  N.  Y. 

99),  190. 
McGuire,  Cain  c.  (13  B.  Mon.  Ky.340), 

255a. 

,  Mantz  v.  (52  Mo.  App.  106),  373. 

M'Guire,  Sage   v.  (4  Watts  &   S.  Pa. 

228),  483,  493. 

McHale,  Fleming  r.  (47  111.  282),  86. 
McHenry,   Perry   v.  (13  111.  227),  86, 

96. 
Machin,  German  v.  (6  Paige,  N.  Y.  Ch. 

288),  463. 
McHugh,  Barrett   v.  (128  Mass.  165), 

199. 
M'llhenny,  M'Kellip  v.  (4  Watts,  Pa. 

317),  28,  31. 
Mclntire.   Linscott    v.    (15   Me.   201), 

261?,  278,  281a 

Mclntosh,  Coffin  v.  (9  Utah,  315).  262. 
Mclntyre  v.  Park  (11  Gray,  Mass.  102), 

14a. 

Maok  r.  Bragg  (30  Vt.  571),  118. 
M'Kay    v.   Rutherford    (13    Jur.   21). 

291  a. 
McKee,   Brosnan   v.    (63    Mich.   454), 

261.9- 

,  Gates  v.  (13  N.  Y.  232),  405. 

,  Jack  ».  (9  Pa.  St.  825),  226,  271. 

M'Kee  v.  Phillips   (9   Watts,  Pa.  85), 

466 
McKeenan   v.   Thissel   (33    Me.  368), 

187. 
M'Kellip  v.  M'llhenny   (4  Watts,  Pa. 

317),  28,  31. 
McKenney,  Dowling  v.  (124  Mass.  478), 

119,  144,  271,  293. 


TABLE  OF  CASES. 


Ixxvii 


Mackenzie,  Cave  v.  (46  L.  J.  Ch.  564), 

96. 
MacKenzie.  Galvin  v.    (21   Ore.   184), 

384. 
,  Hollingshead  t;.  (8  Ga.  457),  498, 

515. 

v.  Jackson  (4  Ala.  230),  187. 

Mat-key  v.  Smith  (21  Ore.  698),  197. 
M'Kinney  v.  Quilter  (4  McCord,  S.  C. 

409),  190. 
McKinney   v.    Harvey    (38  Minn.  18), 

122. 
v.  Reader  (7  Watts,  Pa.  123),  46, 

65,  67. 
v.  Whiting  (8  Allen,  Mass.  207), 

184. 
McKinnon  v.  McKinnon  (56  Fed.  Rep. 

409),  259. 
McKnight  v.  Bell  (135  Pa.  St.  358),  70. 

,  Chappell  v.  (108  111.  570),  370a. 

v.  Dunlop  (5  N.  Y.  637),  337. 

,  Murto  v.  (28  111.  App.  Ct.  239), 

197. 
McKowen   t>.   McDonald    (43   Pa.   St. 

441),  226,  467. 
Mackrell,  Holmes  v.  (3  C.  B.  N.  8.  789), 

357. 
McLain  v.  School  Directors  (51  Pa.  St. 

196),  491a. 
M'Laine,    Hoadley   v.  (10   Bing.  482), 

313,  377.- 
McLanalian,  Cumberland  R.  R.  v.  (59 

Pa.  St.  53),  31. 
M'Laren  v.  Hutcliinson  (22  Cal.  187), 

187,  2Ul>. 
McLaughlin,   Lanz  v.    (14  Minn.   72), 

344,  345a. 

,  Somers  v.  (57  Wise.  358),  319o. 

,  Van  Keuren  v.  (19  N.  J.  Eq.  187), 

229. 
McLean,  Boyd  v.  (1  Johns.  N.  Y.  Ch. 

682),  03. 

,  Linn  v.  (85  Ala.  250),  370rz. 

Maclean  v.  Dunn  (4  Bing.  722),  370a. 
M'Lean   v.   Nicoll   (7  Jur.  N.   s.   999), 

371«,  384. 
McLeod,  Files  v.  (14  Ala.  611),  164. 

,  Lee  v.  (12  Nev.  280),  29. 

MacLin   v.  Havwood  (90  Tenn.   195), 

385.     ' 

McLnre  t'.  Tennille  (89  Ala.  672),  76. 
Macloon,   School  District   v.  (4   Wise. 

79),  487. 
McMahan  r.  McMahan  (13  Pa.  St.  376), 

,  McWhorter  r.  (10  Paige,  N.  Y. 

386),  865,  370rt. 
McMahon,  Matthiessen  Refining  Co.  v. 

(38  N.  J.  L.  636),  342a. 
McMakin   r.  Schenck   (98  Ind.   264), 

267. 
McManus.  Merriman  v.  (102  Pa.   St. 

102),  199a. 


McMichael,  Jones  v.  (12  Rich.  S.  C. 

Law,  176),  259. 
McMillan,  Adams  v.  (7  Port.  Ala.  73), 

369 
,  Mobile  Ins.  Co.  v.  (31  Ala.  711), 

143. 

M'Millen  v.  Terrell  (23  Ind.  163),  367. 
McMonan,  Mitts  v.  (64  Mich.  664),  187. 
McMullen  v.  Riley  (6  Gray,  Mass.  500), 

142. 
McMurry  v.  Mobley   (39  Ark.  309),  96. 

v.  Spicer  (L.  R.  5  Eq.  627),  385. 

McMurray's  Appeal  (101  Pa.  St.  421). 

121. 
McN7ab,  Mitchell  v.  (1  Brad.  111.  297), 

122. 
McNairy,  Ridley  v.  (2  Humph.  Tenn. 

174),  448,  487. 

McNamara  t-.Garrity  (106  111.  384),  465. 
,  Klein  v.  (54  Miss.  90),  44 la,  Ap- 
pendix, p.  608. 
McNamee,  Lamar  ".  (10  Gill  &  J.  Md. 

116),  46,  55. 
McNew  v.  Toby  (6  Humph.  Tenn.  27), 

120. 
McNeil  v.  Gates  (41  Ark.  264),  267. 

,  Cardell  v.  (21  N.  Y.  336),  165. 

McOuat  v.  Cathcart  (84  Ind.  667),  270 
Macomber  v.  Peckham  (16  R.  I.  485), 

441c. 

McPherson  v.  Cox  (96  U.  S.  404),  278a. 
v.  Seguine  (3  Dev.  N.  C.  Law, 

163),  69. 
McQueen,   Schenectady    v.   (15  Hun, 

N.  Y.  651),  1176. 
McQuesten,  Center  v.  (18  Kans.  476), 

118. 

McReynolds,  Martin  v.  (6  Mich.  70),  66. 
Macrory  v.  Scott  (5  Exch.  907),  164, 

203. 
McSpedon,    Therasson    v.    (2    Hilton, 

N.  Y.  1),210. 

McTiphe  v.  Herman  (42  Ark.  285),  199. 
McVay  r.  Bloodgood  (9  Port.  Ala.  647), 

65. 
McWhinne  v.  Martin  (77  Wise.  182), 

466. 
McWhorter   v.   McMahan    (10  Paige, 

N.  Y.  886),  365,  370a. 

,  Ponce  v.  (50  Tex.  662),  487. 

Macy  v.  Childress  (2  Tenn.  Ch.  438), 

161c. 

,  Gulley  v.  (84  N.  C  484),  466. 

Madden,  McCray  r.  (1  McCord,  S.  C. 

Law,  486),  209. 
Maddison  v.  Alderson  (L.  R.  8  H.  L.  C. 

467),    116fi,   465a,  460«,  468, 

467. 
Maddock  r.  Root  (72  Hun,  N.  Y.  98), 

199. 

Maddox,  Bateman  v.  (85  Tex.  646).  87. 
Madeira,  Rickett  v.  (1  Rawle,  Pa.  82.')), 
64. 


Ixxviii 


TABLE   OF  CASES. 


Madman  v.  Walsh  (22  Wise.  501),  230. 
Maffltt  v.  Rynd  (69  Pa.  St.  386),  82. 
MaGee  v.  Blankenship  (95  N.  C.  663), 

346a. 
Magennis   v.  MacCollogh   (Gilb.   Cas. 

235),  44. 
Maggs  v.  Ames  (4  Bing.  470),  156,  511, 

618. 

Maginnis,  Foster  v   (89  Cal.  264),  476. 
Magruder,   Riggs  r.   (2  Cranch,  C.  C. 

143),  297. 

Mahagan  ».  Mead  (63  N.  H.  130),  269. 
Mahan  v.  United  States  (16  Wall.  U.  S. 

143),  138/7. 
Mahana  v.  Blunt '(20  Iowa,  142)    476, 

510a. 
Main  v.  Bosworth  (77  Wise.  660),  130. 

v.  Melbourn  (4  Ves.  720),  461. 

,  Rutenberg  v.  (47  Cal.  213),  370. 

Malaun  v.  Ammon  (1  Grant,  Pa.  123), 

226. 

Malin  v.  Malin  (1  Wend.  N.  Y.  625),  91. 
Malins  ».  Brown  (4  N.  Y.  403),  65,  267, 

463. 
Mallet  v.  Bateman  (L.  R.  1  C.  P.  163), 

163,  174,  193. 
v.  Halfpenny  (1  Eq.  Cas.  Abr.  20), 

445. 
Mallory  v  Gillett  (21  N.  Y.  412),  161c, 

171,  214a. 

v.  Gillett  (23  Barb.  N.  Y.  610),  204. 

,  Mallory   v.   (92   Ky.  316),   215a, 

505. 

v.  Stodder  (6  Ala.  801),  60,  61. 

Malone,  Garret  v.  (8  Rich.  S.  C.  Law, 

335),  270. 

v.  Keener  (44  Pa.  St.  107),  165. 

,  Luark  v.  (34  Ind  444),  204. 

Malone   Nat.  Bank,   May  v.    (9   Hun, 

N.  Y.  108),  187. 

Maloney,  Russell  v.  (39  Vt.  583),  75. 
Maltz,  McDonald  v.  (78  Mich.  685),  269. 
Manistee    Co.,   Bauman   v.   (94  Mich. 

363),  384. 
Manley  v.  Geagan  (105  Mass.  445),  174. 

,  Rice  v.  (2  Hun,  N.  Y.  492),  135ct. 

,  Wood  v.  (11  Ad.  &  E.  34),  25,  27, 

245. 
Manly,  Belding  ?;.  (21  Vt.  650),  65. 

v.  Pettee  (38  111.  128),  70. 

Mann,  Blackburn  v.  (85  111.  222),  278a. 
v.  Blanchard  (2  Allen,  Mass.  386), 

184. 
,  Brinley  v.  (2  Cush.  Mass.  337), 

13. 

v.  Higgins  (83  Cal.  66),  848,  375a. 

,  Kendall  v.  (11  Allen,  Mass.  15), 

90,91. 
,  Knight  v.  (118  Mass.  143),  316a, 

3166,  316c,  316rf,  3186. 

v.  Nunn  (43  L.  J.  Q.  B.  241),  117a. 

,  Wart  v.  (124  Mass.  586),  138c. 

Mannen  v.  Bradberry  (81  Ky.  153),  118 


Manners,  Brizick  v.  (9  Mod.  284),  62. 
Manning  v.  Franklin  (81  Cal.  205),  123. 
v.  Jones   (Busb.  N.  C.  Law,  368), 

150. 

v.  Pippen  (86  Ala.  357),  263,  509. 

v.  Pippen  (95  Ala.  537),  263,  465. 

Manrow,  Durham  v.  (2  N.  Y.  541),  164. 
v.  Durham   (3  Hill,  N.  Y.  584), 

406. 
Mansfield,  Gould  v.  (103  Mass.  408), 

263,  266. 
Manter  v.  Churchill  (127  Mass.  31),  190, 

505. 
Mantz  v.  McGuire   (52  Mo.  App  136), 

373. 
Manufacturing   Co.  v.  Hendricks   (106 

N.  C.  485),  385. 

Mapes  v.  Stanley  (Cro.  Jac.  183),  190. 
Mapps  v.  Sharpe  (32  111.  13),  65. 
Marble,   Cowles  v.  (37  Mich.  158),  229. 

v.  Marble  (5  N.  H.  374),  229. 

March,  Crane  v.  (4  Pick.  Mass.  131),  65. 
Marcus  r.  Barnard  (4  Rob.  N.  Y.  219), 

365. 
Marcy,   Collins  Co.  v.  (25  Conn    239), 

28. 

v.  Crawford  (16  Conn.  649),  159. 

,  Dix  v.  (116  Mass.  416),  119. 

,  Jones  v.  (49  Iowa,  188),  272. 

r.  Marcy  (6  Met.  Mass.  360),  72. 

r.  Marcy    (9  Allen,  Mass.  8),  124, 

289. 
Marden,  Anstey  v.  (1  Bos.  &  P.  N.  R. 

124),  179,  210. 

v.  Champlin  (17  R.  I.  423),  346. 

Marion  v.  Faxon  (20  Conn.  486),  177. 
Mark,  Goodright  v.  (4  Maule  &  S.  30), 

48. 

Markle,  Cadman  v.  (76  Mich.  448),  118. 
Marley  v.  Koblett  (42  Ind.  85),  278a. 
Marnero,  Henschel  v.  (120  111.  620),  94. 
Marquand  v.  Hipper  (12  Wend.  N.  Y 

520),  405. 
Marquette  Building   Co.,  Bice  v.    (96 

Mich.  24),  187. 
Marquette   Co.,   Palmer  v.  (32   Mich. 

274),  352. 
Marqueze    v.   Caldwell   (48  Miss.  23), 

365. 

Marr  v.  Ray   (50  111.  App.  Ct.  415),  39. 
Marriott,  Turner  v.  (L.  R.  3  Eq.  744), 

120. 

Mars,  Gallagher  v.  (50  Cal.  23),  111. 
Marsh  v.  Bellew  (45  Wise.  36),  26,  435. 
,  Crabill   v.    (38  O.  St.  331),  439, 

4fil,  463. 

v,  Davis  (33  Kans   326),  259. 

,  Hanson  v.  (40  Minn.  1),  142.  376. 

r.  Hyde  (3  Gray,  Mass.  831),  337. 

,  McCrea  v.  (12  Gray,  Mass.  211). 

24. 

,  Pace  v.  (1  Bing.  216),  402. 

p.  Rouse  ( 14  N.  Y.  643),  3186. 


TABLE  OF  CASES. 


Ixxix 


Marshall  v.  Berridge  (L.  R.  19  Ch.  D. 

233),  385. 
,  Clary   v.   (6  B.  Mon.   Ky.  269), 

130. 

,  Davies  v.  (10  C.  B.  N.  8.  97),  27a. 

v.  Ferguson  (23  Cal.  66),  246. 

v.  Fisk  (6  Mass.  24),  00. 

v.  Green  (1  C.  P.  Div.  35),  254a, 

257a. 
,  Holliday  v.  (1  Johns.  N.  Y.  211), 

8,42. 
v.  Lynn  (6  Mees.  &  W.  109),  380, 

414,  418. 

,  Newkirk  v.  (35  Kans.  77),  467. 

Marshman   v.  Conklin    (21   N.   J.  Eq. 

646),  94a. 
Marter,   Kirkham   v.  (2  Barn.  &  Aid. 

613),  155,  167. 
Martin  v.  Black  (15  Ga.  449),  261. 

,  Bork  v.  (132  N.  Y.  280),  117. 

,  Dotting  v.  (1  Camp.  317),  18,  38, 

45. 

,  Compton  v.  (5  Rich.  S.  C.  Law, 

•  14),  289. 

v.  Davis  (80  Wise.  371),  187,  2146. 

,  Dyer  v.  (4  Scam.  111.  146),  498. 

,  Farris  v.  (10  Humph,  Tenn.  495), 

355. 

v.  Flowers  (8  Leigh,  Va.  138),  13. 

,  Gaucher  v.  (9  Watts,  Pa.  106), 

483. 
v.  Harris  (26  S.  W.  Rep.  Tex.  91), 

69. 

,  Howes  v.  (1  Esp.  162),  169,  164. 

,  Little  v.    (3  Wend.   N.   Y.   219), 

125. 
v.  Martin  (16  B.  Mon.  Ky.  8),  267, 

445a. 

v.  M'Cord  (6  Watts,  Pa.  493),  487. 

v.  McReynolds  (6  Mich.  70),  65. 

,  McWhinne  v.  (13  Wise.  182),  465. 

v.  Mitchell  (2  Jac.  &  W.  426),  365, 

366. 

v.  Mowlin  (2  Burr.  978),  65. 

o.  Wharton  (38  Ala.  637),  230. 

,  Wilson  v.  (1  Denio,  N.  Y.  602), 

20,  272. 

,  Yates  v.  (1  Chand.  Wise.  118),  266. 

Martz,  Morin   r.  (13   Minn.  191),  188, 

365,  487. 
Marvin,  Amhurger  v.  (4  E.  D.  Smith, 

N.  Y.  393),  284. 

,  Chappel  v.  (2  Ark.  Vt.  79),  318. 

r.  Wallis  (6  El.  &  B.  726),  3186, 

320. 

Welch  r.  (36  Mich.  69),  197. 

Mascall,  Cookes  v.  (2  Vern.  200),  443. 
Mason,  Becker  v.  (30  Kans.  697),  140. 

,  Davenport  v.  (15  Mass.  85),  488. 

,  Evans  v.  (1  Lea,  Tenn.  26),  159. 

— ^-  v.  Hall  (30  Ala.  699),  166ft. 

>  Leonard  v.  (1  Wend    N.  Y.  622), 


Mason,  Lobdell  v.  (16  So.  Rep.  Miss. 

44),  14. 
,  Thompson  v.  (4  Bibb,  Ky.  195), 

119,  129. 
-  v.  Whitbeck  Co.  (35  Wise.  164), 

330. 
— ,  Williams   v.    (28  Law   T.   N.   8. 

232),  370c. 

v.  Wilson  (84  N.  C.  51),  187. 

Massachusetts  Nat.  Bank,  Morse  v.  (1 

Holmes,  C.  C.  209),  174. 
Massey,  Chambers  v.  (7  Ired.  N.  C.  Eq. 

286),  518. 

,  Hunt  v  (5  Barn.  &  Ad.  902),  Ap- 
pendix, p.  683. 

v.  Johnson  (1  Exch.  255),  229. 

Masson  v.  Swan  (6  Tenn.  450),  119. 
Masten,  Thornburg  v.  (88  N.  C.  293), 

377. 
Masterson,  Cormack  v.  (3  Stew.  &  P. 

Ala.  411),  134,  385. 
Masterton,  Nelson  v.  (2  Griffith.  Ind. 

624),  463. 
Mastin,  Burkham  v.  (64  Ala.  122),  506. 

i;.  Grimes  (88  Mo.  478),  366. 

Mather,   Farwell  v.    (10   Allen,  Mass. 

322),  385. 

v.  Perry  (2  Denio,  N.  Y.  162),  178. 

,  Rand  v.  (11  Gush.  Mass.  1),  147, 

149. 

v.  Scoles  (36  Ind.  2),  263a. 

Mathers   v.   Carter  (7  Brad.  111.  App. 

Ct.  225),  1666. 

Mathews  v.  Sawell  (8  Taunt.  270),  56. 
Matler  et  al.  Benjamin  v.  (3  Col.  Ct.  of 

App.  227),  608. 

Matot,  Battell  ».  (58  Vt.  271),  608. 
Matson  v.  Wharam  (2  T.  R.  80),  163, 

197,  198. 
Matthews,  Egerton  v.  (6  East,  307),  381, 

389. 
v.  Matthews  (62  Hun,  N.  Y.  110), 

463. 
v.  Milton  (4  Yerg.  Tenn.  579),  163, 

197. 
,  Sainsbury  v.  (4  Mees.  &  W.  343), 

243. 

,  Smith  v.  (3  De  G.  F.  &  J.  139),  98. 

v.  Wallwyn  (4  Ves.  118),  65. 

,  Ward  v.  (73  Cal.   13),  90,   290a, 

291a. 
Matthiessen  Refining  Co.  v.  McMahon 

(38  N.  J.  L.  636),  342a. 
Mattice  r.  Allen  (3  Abb.  N.  Y.  App. 

Dec.  248),  342... 

Mattison  v.  Wescott  (13  Vt.  268),  307. 
Mauck   v.  Melton   (64   Ind.  414),  463, 

491a. 
Maudeville,  Walton  r.  (56  Iowa  697), 

172. 

Maul  v.  Rider  (51  Pa.  St.  377),  78. 
Maule   v.   Bucknell  (50   Pa.   St.  819), 

214,  214«. 


Ixxx 


TABLE   OF   CASES. 


Maule,  Crawsliay    v.  (1  Swanst.  495), 

259. 

Maurin  v.  Fogelberg  (37  Minn.  23),  198. 
Mavor  v.  Pyue  (3  Bing.  285),  285. 
Maw,  Loffus  v.  (3  Giff.  592),  463. 
Mawbray.     See  Mowbray. 
Mawry,  Dick  v.  (9  Smedes  &  M.  Miss. 

448),  65. 

Maxfield  v.  West  (6  Utah,  327),  461. 
Maxwell,  Deal  v.  (51  N.  Y.  652),  302. 
,  Ferrell  v.  (28  Ohio  St.  383),  1610, 

161c. 

v.  Haines(41  Me.  559),  1666. 

,  Janvrin  v.  (23  Wise.  51),  3186. 

v.  Mountaoute.     See  Montacute. 

Maxwell's  Case  (1  Bro.  C.  C.  409,  note), 

441. 
May  v.  Malone  Nat.  Bank  (9  Hun,  N.  Y. 

108),  187. 

v.  Sloan  (101  U.  S.  231),  511. 

v.  Thompson   (L.  R.  20  Ch.  D. 

705),  298. 

v.  Ward  (134  Mass.  127),  384. 

Mayberry  v.  Johnson   (3  Green,  N.  J. 

Law,  116),  6,  7,  43. 
Maydwell  v.  Carroll  (3  Harr.  &  J.  Md. 

361),  76. 

Mayer  v.  Adrian  (77  N.  C.  83),  3466. 
Mayfield  v.  Wadsley  (3  Barn.  &  C.  357), 

143,  253,  254. 
Maynard,  Blow  v.  (2  Leigh,  Va.  29), 

223 

,  Coupland  v.  (12  East,  134),  47. 

,  Gillet  v.  (5  Johns.  N.  Y.  85),  119. 

,  Hunt  v.  (6  Pick.  Mass.  489),  65, 

267. 

v.  Ponder  (75  Ga.  664),  198. 

,  White  v.  (Ill  Mass.  250),  20,  37a. 

Mayo,  Duppa  v.  (1  Wms.  Saund.  380, 

note),  505a. 
Mayor  of  — .     See  name  of  City. 

,  Wells  r.  (L.  R.  10  C.  P.  402),  269. 

Mays  r.  Joseph  (34  O.  St.  22),  159. 
Meach  v.  Perry  (1  D.  Chip.  Vt.  191), 

457a. 
v.  Stone  (1  D.  Chip.  Vt.  182),  448, 

507,  518,  533. 
Meacham,  Meacham  v.  (91  Tenn.  532), 

69. 
Mead  r.  Case  (33  Barb.  N.  Y.  202),  302, 

308. 
v.  Keyes   (4  E.  D.  Smith,  N.  Y. 

510),  193. 

,  Mahagan  v.  (63  N.  H.  130),  269. 

v.  Parker  (115  Mass.  413),  385. 

r.  Watson  (57  Vt.  426),  162. 

. t7.  York  (6  N.  Y.  449),  267. 

Meador  v.  Meador  (3  Heisk.  Tenn.  562), 

64. 
Meadows  v.  Meadows  (8  McCord,  S.  C. 

Law,  458),  869,  385. 
Meale,   Seagood  v.   (Finch.  Prec.   Ch. 

560),  448,  467,  476. 


Mease    v.  Wagner  (1   McCord,  S.   C. 

395),  156. 
Mechanics'  Bank  v.  Farmers'  Bank  (60 

N.  Y.  40),  317,  326. 
Mechelen  v.  Wallace  (7  Ad.  &  E.  49), 

117a,  141,  254. 
Mecorney  v.  Stanley    (8  Cush.  Mass. 

85),  190. 
Medbury  v.  Watson  (6  Met.  Mass.  246), 

182,  183. 
Medlicott,  Toole  17.  (1  Ball  &  B.  393), 

456,  487. 

Medlin  v.  Steele  (75  N.  C.  154),  69. 
Meech  ».  Smith  (7  Wend.  N.  Y.  316), 

212. 

Meehan  v.  Sharp  (151  Mass.  564),  296a. 
Meek,  Babcock  v.  (45  Iowa,  137),  505. 
Meeker,  Couch  v.  (2  Conn.  302),  134, 

152. 
Meetze  v.  Railroad  Co.  (23  S.  C.  2),  28, 

487. 
Mehaffy,  Lowry  v.  (10  Watts,  Pa.  387), 

366. 
Meigs,  Waterman   v.    (4   Cush.   Mass. 

497),  302,  373. 

Meincke  v.  Falk  (55  Wise.  427),  305. 
Melbourn,  Main  v.  (4  Ves.  720),  461. 
Mellon  v.  Davison  (123  Pa.  St.  298), 

348,  385. 

v.  Read  (114  Pa.  St.  647),  70. 

17.  Read  (123  Pa.  St.  1),  230a. 

Mellor  v.  Watkins  (L.  R.  9  Q.  B.  400), 

31. 

Mellows  17.  May  (Cro.  Eliz.  874),  60. 
Melms,  Vogel  v.  (31  Wise.  306),  161c, 

162,  197u. 
Melton,  Mauck  v.  (64  Ind.  414),  491a, 

463. 
Menard,  Fountain  v.   (53  Minn.  443), 

262. 
Mendel,  North  v.    (73   Ga.   400),   348, 

380. 

Mendum,  Southerin  v.  (5  N.  H.  420),  65. 
Mentz  v.  Newwitter  (122  N.  Y.  491), 

373. 
Mercein  v.  Andrus   (10  Wend.   N.  Y. 

461),  205. 

Mercer,  Daniel  v.  (63  Ga.  442),  197. 
Mercur,  Haverlv  i?.  (78  Pa.  St.  257), 

199a.    ' 
Meredith  v.  Meigh  (2  El.  &  B.  364), 

333 

i?.  Naish  (4  Stew.  Ala.  207),  122. 

17.  Naish  (3  Stew.  &  P.  Ala.  59), 

461. 
Meriden  Britannia  Co.  v.  Zingsen  (48 

N.  Y.  247),  167. 
Merrell,  Walther  v.  (6  Mo.  App.  370), 

214. 
Merriam.  Green  v.  (28  Vt.  801),  3186, 

320. 
Merrick,  Burnside  v.   (4  Met.    Masa 

637),  259. 


TABLE   OF   CASES. 


Ixxxi 


Merriken,  Evans  v.  (8  Gill  &  J.  Md.  39), 

•         65. 

Merrill,  Chapin  v.  (4  Wend.  N.  Y.  657), 
158,  10k. 

v.  Englesby  (28  Vt.  150),  157. 

,   Levy   v.    (4    Greenl.   Me.   180), 

801. 

,  Porter  v.  (124  Mass.  634),  20. 

,  Sanborn  v.  (41  Me.  467),  157. 

,  Taylor  v.  (55  111.  52),  1370. 

Merriman  v.  McManus  (102  Pa.  St.  102), 

199«. 

Merritt  v.  Clason  (12  Johns.  N.  Y.  102), 
352 

,  Roget'v.   (2  Caines,  N.  Y.  117), 

366. 

Merry,  Alexander  v.  (9  Mo.  510),  78. 
Mersereau  v.  Lewis  (25  Wend.  N.  Y. 
243),  188. 

,  Runyan  v.  (11  Johns.  534),  65. 

Mertins,  Lacon  r.  (3  Atk.  1),  454,  461, 

467,  498,  515. 
Messmore   v.   Cunningham    (78   Mich. 

623),  138i,  371,  477. 

Mestaer  v.  Gillespie  (11  Ves.  621),  442. 
Metcalf  v.  Putnam  (9  Allen,  Mass.  100), 

270. 
Metivier,  Simon  v.  (1  W.  Bl.  599),  293, 

369 
Metropolitan  Ins.  Co.,  Walker  v.   (56 

Me.  371),  275. 
Mettler,   New   Brunswick  Bank  v.    (2 

Bosw.  N.  Y.  392),  187. 
Meux,  Thornton  v.   (Moo.   &  M.  43), 

351 
Mewbrun's'  Heirs  r.  Bass  (82  Ala.  622), 

135. 
Mews  v.  Carr  (1  Hurlst.  &  N.  484),  353, 

36%i. 
Meyer  v.  Hartmann  (72  111.  442),  166/> 

,  Keiwert  v.  (62  Ind.  587),  3276. 

v.  Roberts  (46  Ark.  80),  282. 

r.  Thompson    (19   Oregon,    194), 

316/ 

,  Unman  ».   (10  Fed.   Rep.  241), 

216a,  272. 
Meyers,  Hill  v.  (43  Pa  .St.  395),  71. 

v.  Johnson  (15  Ind.  261),  75. 

v.  Schemp  (67  111.  469),  234. 

Miazza  r.  Yerger  (53  Miss.  135),  96. 
Michael  v.  Curtis  (60  Conn.  363),  234. 

v.  Foil  (100  N.  C.  178),  269. 

Middlesex  Co.  v.  Osgood  (4  Gray,  Mass. 

447),  511. 

Middleton  v.  Brewer  (Peake,  15),  508. 
—— ,  Izard  v.  (1  Desaus.  S.  C.  Ch.  116) 
275. 

,  Shields  v.  (2  Cranch,  C.  C.  205) 

172. 
Midgley,  Wood  v.  (5  De  G.  M.  &  G  41 ) 

346ft,  360,  446,  607. 

Midmer  e.  Midmer  (26  N.  J.  Eq.  299) 
91. 


Mighell  r.  Dougherty  (86  Iowa,  480), 

305. 
,  Gregory  v.  18  Ves.  328),  476, 483, 

484. 
Milbank,  Kennett  v.  (1  Moo.  &  S.  102), 

349. 

Milk  v.  Rich  (16  Hun,  N.  Y.  178),  166. 
Milks  v.  Rich  (80  N.  Y.  269),  165. 
Millar,  Long  v.  (L.  R.  4  C.  P.  D.  450), 

348,  349. 
Vlilledgeville   Laundry   Co.  v.  Gobert 

(89  Ga.  473),  508. 
Millemann,  Jamieson  v.  (3  Duer,  N.  Y. 

255),  30,  31. 
Miller  v.  Auburn  R.  R.  (6  Hill,  N.  Y. 

61),  29. 

-,  Auter  r.  (18  Iowa,  405),  515. 
v.  Baker  (1  Met.  Mass.  27),  236, 

245. 
-,  Benziger  v.  (60  Ala.  206),  344. 

-  v.  Blackburn  (14  Ind.  62),  441a. 
,  Casey   v.    (32  Pac.   Rep.   Idaho, 

195),  1666. 

-  v.  Cook  (23  N. Y.  495),  408a. 

-  v.  Cotten  (5  Ga.  341),  618. 

-  p.  Drake  (1  Caines,  N.  Y.  45).  505. 

-  v.  Hower  (2  Rawle,  Pa.  63),  467. 

—  r.  Irvine  (1  Dev.  &  B.  N.  C.  Law, 

103),  391,  395. 

—  r.  Kendig  (55  la.  174),  269. 

,  Kiester  v.  (25  Pa.  St.  481),  46. 

,  Lane  v.  (27  Ind.  534),  31. 

,  Legal  v.  (2  Ves.  Sr.  299),  501. 

v.  Long  (45  Pa.  St.  350),  156. 

v.  Lorentz  (19  S.  E.  Rtp.  W.  Va. 

391),  461,  474. 

r.  Lynch  (17  Ore.  61),  193. 

v.  Pearce  (6  Watts  &  S.  Pa.  97), 

96. 
v.   Pelletier   (4   Edw.  N.   Y.  Ch. 

102),  365. 

».  Pierce  (104  N.  C.  389),  433. 

,  Pratt  r.  (109  Mo.  79),  305. 

,  Pulse  v.  (81  Ind.  190),  385. 

v.  Roberts  (18  Tex.  16),  268,  289. 

,  Rossiter  v.  (6  Ch.  Div.  648),  371a, 

373. 

v.  Specht  (11  Pa.  St.  449),  228. 

,  Sweeny  v.  (34  Me.  388),  74. 

».  Tobie  (41  N.  H.  84),  119,  122, 

487. 
,  Tomlinson  v.  (7  Abb.  N.  Y.  Pr. 

N.  8.  364),  298. 
,  Wilson  r.  (42  111.  App.  Ct.  332), 

136,  348. 

v.  Wilson  (146  111.  523),  186,  635. 

,  Young  ».  (6  Gray,  Mass.  162),  66. 

v.  Zufall  (113  Pa.  St.  317).  474. 

Brewery  Co.,  Koenig  v.   (38  Mo. 

App.  182),  46,  53. 

Milligan  v.  Dick  (107  Pn.  St.  250),  122. 
Milliken   r.   Dravo   (67   Pa.   St.   230), 

487. 


Ixxxii 


TABLE  OF  CASES. 


Milliken,  Smith  v.  (7  Lans.  N.  Y.  336), 

334,  336. 

v.  Warner  (62  Conn.  51),  187. 

Mills,  Abbott  v.  (3  Vt.  521),  74a. 

v.  Brown  (11  Iowa,  314),  161c. 

Mills,  Entz  v.  (1  McMull.  S.  C.  Law, 

453),  369. 

v.  Gore  (20  Pick.  Mass.  28),  297. 

,  Hart  v.  (15  Mees.  &  W.  85),  335. 

v.  Hunt    (17   Wend.  N.  Y.  333), 

335. 
,  Patton  v.  (21  Kans.  *  163),  188, 

214. 

,  Winck worth  v.  (2  Esp.  484),  160. 

Milman,  Morgan  v.  (3  De  G.  M.  &  G. 

24),  487a. 

Milne,  Houlditch  r.  (3  Esp.  86),  205. 
Milner,  Krider  i;.  (99  Mo.  145),  75. 
Milton,  Heflin  v.  (69  Ala.  354),  275. 
,  Matthews  v.  (4  Yerg.  Tenn.  579), 

163,  197. 
Mihvard,  Doe  v.  (3  Mees.  &  W.  328), 

47. 
Milwaukee  Ins.  Co.,  Wiebeler  v.   (30 

Minn.  464),  275. 

Mims  v.  Chandler  (21  S.  C.  480),  384. 
Miner,  Purcell  v.  (4  Wall.  U.  S.  513), 

271,  483,  493. 

Minet,  Ex  parts  (14  Ves.  190),  191. 
Minett,  Rugg  v.  (11  East,  210),  335,  336. 
Minick  v.  Huff  (59  N.  W.  Rep.  Neb. 

795),  161c. 
Mining  Co.,  Neaves  v.  (90  N.  C.  412), 

370rt,  373. 

v.  Taylor  (100  U.  S.  42),  230. 

Miranville  r.  Silverthorn  (1  Grant,  Pa. 

410),  231. 
Mitchell  v.  Bush  (7  Cowen,  N.  Y.  185), 

233 

v.  Griffin  (58  Ind.  559),  1666,  200a. 

,    Humble   v.    (11  Ad.  &  E.  205), 

258,  296. 

v.  King  (77  111.  462),  130. 

,  Lucas  v.   (3  A.   K.   Marsh.  Ky. 

244),  130. 

v.  McNab  (1  Brad.  111.  297),  122. 

,  Martin  v.  (2  Jac.  &  W.  426),  365, 

366. 

,  Pray  v.  (60  Me.  430),  298. 

Mitts  v.  McMonan  (64  Mich.  664),  187. 
Mixer  v.  Howarth  (21  Pick.  Mass.  205), 

302,  305,  307. 
Mizell  v.  Burnett  (4  Jones,  N.  C.  Law, 

249),  344,  354rt. 
Moale  v.  Buchanan  (11  Gill  &  J.  Md. 

314),  454,  465. 
Mobile  Ins.  Co.  v.  McMillan  (31  Ala. 

711),  143. 

Mobile  R.  R.  v.  Jones  (57  Ga.  198),  165. 
Mobley,  McMurry  v.  (39  Ark.  309),  96. 
Mockbee,  Goddard  v.  (5  Cranch,  C.  C. 

666),  187. 
Mograin,  Nay  v.  (24  Kans.  *75),  493. 


Mohn,  Seiler  v.  (37  W.  Va.  507),  87. 
Mohr  v.  Dillon  (80  Ga.  572),  380. 
Mollett  v.   Brayne   (2  Camp.  103),  45, 

Money,  Jorden  v.   (5    H.  L.  C.   207), 

215a. 

Moniban,  Wells  v.  (129  N.  Y.  161),  508. 
Monk,  Ellwood  v.  (5  Wend.  N.  Y.  235), 

169. 

,  Oakley  v.  (3  Hurlst.  &  C.  705),  39. 

Monks,  Page  v.   (5  Gray,  Mass.  492), 

117,  150. 

Monroe  v.  Snow  (131  111.  126),  269. 
Monson  Mfg.  Co.,  Powell  v.  (3  Mason, 

C.  C.  347),  85,  93. 
Montacute  v.  Maxwell  (1  P.  Wms.  618), 

94,  111,  224,  354,  385,  439, 459, 

460. 
Montague,  Bog  Lead  Co.  v.  (10  C.  B. 

N.  8.  489),  321a. 
,  Delano  v.  (4  Cush.  Mass.  42),  33, 

37  230  272 
v.  Garnett  (3  Bush,  Ky.  297),  126, 

289. 
Montgomery,  Easton  v,  (90  Cal.  307), 

365. 

v.  Edwards  (46  Vt.  151),  508. 

v.  Reilly  (1  Bligh,  364),  220. 

Montross,  Odell  v.  (68  N.  Y.  499),  229, 

44  la. 
Moody  v.  Aiken  (50  Tex.  65),  234. 

,  Hawley  v.  (24  Vt.  603),  118,  122. 

w.  Smith  (70  N.  Y.  598),  118. 

Moog  v.  Strang  (69  Ala.  98),  406. 
Mooney  v.  Elder  (56  N.  Y.  238),  135a. 
Moor,  Foquet  v.  (7  Exch.  870),  47,  60, 

254. 
Moore  v.  Aldrich  (25  Tex.  Supp.  276), 

133. 
,  Bates  v.  (2  Bail.  S.  C.  Law,  614), 

289. 

,  Central  Co.  r.  (75  Wise.  170),  305. 

,  Cock  v.  (18  Hun,  N.  Y.  31),  181. 

,  Davis  v.  (13  Me.  424),  337. 

,  Davis  v.  (9  Rich.  S.  C.  Law,  215), 

451,  474. 
,  Dunn  v.  (3  Ired.  N.  C.  Eq.  364), 

448,  490,  510a. 
v.  Edwards  (4  Ves.  23),  515,  518, 

530 

v.  Fox  (10  Johns.  N.  Y.  244),  283. 

,  Fulton  v.  (25  Pa.  St.  468),  265. 

v.  Green  (3  B.  Mon.  Ky.  407),  96. 

,  Hamilton  Co.  v.  (25  Fed.  Rep.  4), 

28. 

v.  Hart  (1  Vern.  110),  854a. 

v.  Horse  Nail  Co.  (76  Mich.  606), 

118. 
,  Hughes  v.  (1  Cranch,  U.  S.  176), 

229 
,  Jackson  v.  (6  Cowen,  N.  Y.  706), 

89,  97. 
v.  Kerr  (46  Ind.  468),  72. 


TABLE  OF  CASES. 


Ixxxiii 


Moore  v.  Moore  (38  N.  H.  382),  441a. 

v.  Mountcastle  (61  Mo.  424),  354a. 

c.  Picket t  (62  111.  168),  96. 

,  Pitt  v.  (99  N.  C.  86),  490. 

v.  Powell  (25  S.   W.  Kep.  Tex. 

472),  365. 
v.  Small  ( 1«  Pa.  St.  461),  226,  448, 

454,  407,  471,  473,  474  493. 
,  Stokes  o.  (1  Cox,  219),  357. 

v.   Stovall   (2  B.   J.  Lea,  Tenn. 

543),  165. 
v.  Tisdale  (5  B.  Mon.  Ky.  352), 

129. 
Moorecroft   v.  Dowding   (2   P.   Wins. 

314),  110. 
Moorliouse  v.  Crangle  (36  O.  St.  130), 

178. 

Moorman  i>.  Wood  (117  Ind.  144),  267. 
Moran,  Buchanan  v.  (62  Conn.  83),  156, 

157. 
Moreau,  Hubert  v.  (2  Car.  &  P.  528), 

355,  356a,  362. 
Moreliead  v.  Watkyns  (5  B.  Mon.  Ky 

228).  38,  40. 
Morehouse,   Simons   v.  (88  Ind.  391), 

38. 
Moreland  v.  Lemasters  (4  Blackf.  Ind. 

383),  487. 

Moreman,  Camp  v.  (84  Ky.  635),  3466. 
Morey,  Noakes  v.  (30  Ind.  103),  3426, 

359. 

,  Pike  v.  (32  Vt.  37),  451. 

,  Whitcher  ».  (39  Vt.  459),  133. 

Morgan  v.  Bissell  (3  Taunt.  65),  7. 
,  Edwards  r.  (100  Pa.  St.  330),  404. 

v.  Griffith  (L.  R.  6  Exeh.  70),  117, 

117a,  233. 
v.  Milman  (3  De  G.  M.  &  G.  24), 

487a. 

,  Numez  v.  (77  Cal.  427),  130. 

,  Page  v.  (L.  R.  15  Q.  B.  D.  228), 

316/ 
,  Randall  v.  (12  Ves.  67),  219,  223, 

224. 

r.  Sykes  (3  Q.  B.  486,  note),  138/ 

,  Tisdale  v.  (1  Hun,  N.  Y.  683), 

1606. 

,  Walters  v.  (2  Cox,  369).  515. 

Morgner,   Beardslee   v.    (4    Mo.    App. 

139),  1666. 
Moriarty,  Wood  v.  (15  R.  I.  618),  166*1, 

'  is*. 
Morin   v.  Mart/   (13   Minn.  191),   188, 

365  487 
Moring,  Gould  v.  (28  Barb.  N.  Y.  444), 

406. 
Morison  ?•.  Tumour  (18  Ves.  175),  356, 

357,  614. 

Moritz  u.  Lavalle  (77  Cal.  10),  230. 
Morley  v.  Boothby  (3  Bing.  107),  388, 

395. 
Morphett   i'.  Jones    (1    Swanst.   172), 

448,  454,  456,  476. 


Morrell,  Crawford  v.  (8  Johns.  N.   Y. 

253),  147. 

Morrice,  Leak  v.  (2  Cas.  Ch.  135),  446. 
Morrill  v.  Colehour  (82  111.  618),  2616. 
v.  Cooper  (65  Barb.  N.   Y.  512), 

478. 

,  Norris  v.  (40  N.  H.  395),  39. 

Morrin,  Ashcroft  v.  (4  Man.  &  G.  450), 

378. 
Morris  v.  Bacon  (123  Mass.  58),  65. 

,  Baker  v.  (33  Kans.  580),  155. 

,  Bo  wen  v.  (2  Taunt.  374),  366. 

v.  Gaines  (82  Tex.  255),  165. 

v.  Harris  (9  Gill,  Md.  19),  467. 

— ,  Hollis  v.  (2  Harr.  Del.  3),  124. 

,  Hoover  v.  (3  Ohio,  66),  164. 

,  Newman  v.  (4  Harr.   &  M.   Md. 

421),  293. 

v.  Nixon  (1  How.  U.  S.  118),  111. 

v.  Osterhout  (55  Mich.  262),  199. 

,  Reynolds  v.  (17  Ohio  St.  510),  85. 

v.  Stacey  ( Holt,  153),  402. 

,  Williams  v.  (95  U.  S.  444),  346, 

3466,  37  la,  376,  384,  385,  448, 

452,  457,  493. 
,  Williams  v.  (8  Mees.  &  W.  488), 

24. 
Morrison  v.  Baker  (81  N.  C.  76),  508. 

,  Bird  v.  (12  Wise.  138),  261/ 

v.  Bowman  (29  Cal.  352),  13. 

v.  Chadwick  (7  C.  B.  266),  55. 

v.  Collier  (79  Ind.  417),  135,  444a. 

v.  Herrick  (130  III.  631),  483,487. 

v.  Hogue  (49  Iowa,  574),  200a. 

,  Jack  v.  (4$  Pa.  St.  113),  197. 

,  Springle  v.  (3  Litt.  Ky.  52),  129. 

,  Tiglie  v.  (41  Hun,  N.  Y.  1),  212. 

,  Tighe  v.  (116  N.  Y.  263),  161c, 

163,  212. 

Morse,  Bell  v.  (6  N.  H.  205),  65. 
v.  Copeland  (2  Gray,  Mass.  302), 

27a,  435. 
,  Jackson  v.  (16  Johns.  N.  Y.  197), 

84. 
v.  Mass.  Nat.  Bank  (1  Holmes,  C. 

C.  209),  174. 
,  Myers  v.  (15  Johns.  N.  Y.  425), 

212,611. 
,  Slingerland   v.    (7  Johns.   N.   Y. 

463),  205,  209. 
Morss,  Pickerell  v.  (97  111.  220),  130, 

476. 
Mortimer  v.  Orchard  (2  Ves.  Jr.  243), 

501. 

Mortlock  r.  Buller  (10  Ves.  292),  370n. 
Morton,  Cabot  Bank  v.  (4  Gray,  Mass. 

lf>6),  183. 
,  Cotmtock  v.  (36  Mich.  277),  161c, 

188. 
v.  Dean  (13  Met.  Mass.  385),  348, 

369,  382. 
,  Kimhall    v.    (I    Halst.    N.  J.  Ch. 

20),  82. 


Ixxxiv 


TABLE   OF  CASES. 


Morton  v.  Nelson  (145  111.  586),  90. 
v.  Tewart   (2   Younge  &  C.  67), 

98. 
v.  Tibhett   (15   Q.  B.  428),  316/, 

328. 

,  Wilson  v.  (85  Cal.  598),  135. 

Moseley,  Russell  v.  (3  Brod.  &  B.  211), 

405. 
Mosely,  Jacobs  v.  (91  Mo.  457),  75. 

,  Judd  v.  (30  Iowa,  423),  9tx/. 

v.  Taylor  (4  Dana,  Ky.  542),  193. 

Moses  v.  Lawrence  County  Bank  (149 

U.  S.  298),  191,  403. 

v.  McClain  (82  Ala.  370),  365. 

v.  Norton  (36  Me.  113),  198. 

Moslier,  Carney  v.  (97  Mich.  554),  245. 

,  Keyman  v.  (71  Ind.  596),  117. 

Moshier  v.  Kite-hell  (87  111.  18),  199. 
Moss  r.  Atkinson  (44  Cal.  3),  354o. 
,  Caston  v.  (I  Bail.  S.  C.  Law,  14), 

212. 

v.  Culver  (64  Pa.  St.  414),  76. 

Mostaller,  Stackberger  v.  (4  lud.  461), 

230. 
Mostyn,  Boardman  v.  (6  Ves.  467),  467, 

494,  496,  497. 

Motives,  Simon  v.  (1  W.  Bl.  599),  369. 
Mott  v.  Kurd  (1  Root,  Conn.  72),  270. 
Moulton  v.  Faught  (41  Me.  298),  28, 

29. 

r.  Harris  (94  Cal.  420),  487. 

Mountacue.     See  Montacute. 
Mountain   City   Association  v.  Kearns 

(103  Pa.  St.  403),  38. 
Mountcastle,  Moore  v.  (61  Mo.  424), 

354a. 
Mt.  Hope  Co.,  Jenness  v.  (53  Me.  20), 

371a. 
Mountstephen  v.  Lakeman  (L.  R.  7  Q 

B.  196),  157a,  163,  195,  197a, 

199. 
,  Lakeman  v.  (L.  R.  7  H.  L.  17), 

199,  199a. 
Mo  van   v.  Hays   (1  Johns.  N.  Y.  Ch. 

339),  98. 
Mowbray    v.   Cunningham    (1   Cowp. 

227,  note),  163. 

Mowlin,  Martin  v.  (2  Burr.  978),  65. 
M.  St.  P.,  and  S.  S.  M.  R.  R.,  Wall  v. 

(86  Wise.  48),  487. 
Muckleston  v.  Brown  (6  Ves.  52),  82, 

103. 
Mucklestone,   Dixon   v.   (L.  R.  8  Ch. 

155),  62a. 

Mudgett  v.  Clay  (5  Wash.  103),  487. 
Mueller,  Taylor  v.  (30  Minn.  343),  236, 

3276,  331. 

v.  Wiebracht  (47  Mo.  468),  138c. 

Muhlbach,  South  Baltimore  Co.  r.  (69 

Md.  395),  233.  234. 
Muir,  Crutcher  v.  (90  Ky.  142),  263. 
Mulchrone  v.  American  Co.  (55  Mich. 

622),  1666. 


Mullaly  v.  Holden  (123  Mass.  583),  505 
Mullen,  Simmons  Co.  v.  (33  Minn.  196). 

3276. 
Muller  v.  Riviere  (59  Tex.  640),  203, 

204. 
Mulry,  Johnson  v.  (4  Rob.  N.  Y.  401), 

369 
Mumford  v.  Whitney  (15  Wend.  N.  Y. 

380),  28. 

Munchon,  Briggs  v.  (56  Mo.  467),  3466. 
Munchus,  Boiling  v.  (65  Ala.  658),  509. 
Munday  v.  Asprey  (L.  R.  13  Ch.  D. 

855),  352a,  371a. 

,  Champion  v.  (85  Ky  31),  117. 

Mundorffr.  Kilbourn  (4  Md.  549),  263. 
Mundy  v.  Jolliffe  (5  Myl.  &  C.  167), 

466,  494. 
Munn,  Worrall  v.  (5  N.  Y.  229),  355, 

365,  370a. 

Munroe,  Bird  v.  (67  Me.  337),  136. 
Munson,  Ailing  v.  (2  Conn.  691),  180. 
Murdock,  Walden  v.  (23  Cal.  540),  325. 
Murley  t;.  Ennis  (2  Col.  300),  262,  263a. 
Murphy  v.  Boese  (L.  R.  10  Exch.  126), 

367,  368,  370o. 

,  Boyce  v.  (91  Ind.  1),  197. 

,  Frank  v.  (7  Mont.  4),  310. 

v.  Hubert  (7  Pa.  St.  420),  81,  84. 

,  Niland  v.  (73  Wise.  326),  116. 

v.   O'Sullivan    (18  Ir.  Jur.   Ill), 

276,  282a. 
v.  Renkert  (12  Heisk.  Tenn.  397), 

197. 

v.  Stell  (43  Tex.  123),  491a. 

v.  Webber  (61  Me.  478),  138c. 

v .  Whitney  (69  Hun,  N.  Y.  673), 

463. 

v.  Whitney  (140  N.  Y.  541),  463. 

Murray,  Higgins  v.  (4  Hun,  N.  Y.  565), 

308. 

,  Hobart  v.  (54  Mo.  App.  249),  508. 

v.  Jayne  (8  Barb.  N.  Y.  612),  4fi7. 

r.  Parker  (19  Beavan,  308),  441rf. 

,  Rogers  v.  (3  Paige,  N.  Y.  390),  84, 

89. 
Murto  v.  McKnight  (28  111.  App.  Ct. 

239),  197. 
Mushat  v.  Brevard  (4  Dev.  N.  C.  73), 

116. 

Musick  v.  Musick  (7  Mo.  495),  212. 
Mussell   v.  Cooke    (Finch,  Prec.    Ch. 

533),  296,  518. 

Mussey  v.  Bates  (65  Vt.  449),  65. 
,  Fessenden  v.  (11  Gush.  Mass  127), 

382. 

v.  Holt  (24  N.  H.  248),  60,  61. 

v.  Scott  (7  Cush.  Mass.  215),  13. 

Musson,  Graham  v.  (5  Bing.  N.  R.  603), 

363,  370a. 
Mut.  Benefit  Ins.   Co.    v.  Brown    (30 

N.  J  Eq.  193),  126. 
Myer  v.  Grafflin  (31  Md.  350),  198. 
,  Kriete  v.  (61  Md.  558),  384. 


TABLE  OF  CASES. 


Ixxxv 


Myers  v.  Byerly  (4*  Pa.  St.  368),  482. 

v.  Crosswell  (45  O.  St.  543),  475. 

,  Jackson  v.  (1:20  Ind.  604),  439. 

I-.  Morse  (16  Johns.  N.  Y.  425), 

212,  511. 

v.  Perigal  (11  C   B.  90),  258. 

Mygatt  r.  Tarbell  (78  Wise.  351),  2946. 
Mystic  River  Corp.,    Bartlett    r.  (151 

Mass.  433),  278. 

N. 

Nab  v.  Nab  (10  Mod.  404),  82,  100. 
Naish,  Meredith  v.  (3  Stew.  Ala.  207), 

122. 
,  Meredith  v.  (4  Stew.  &  P.  Ala. 

59),  451. 

Nally  v.  Reading  (107  Mo.  350),  230. 
Nance,  Simpson  r.  (1  Speers,  S.C.  Law, 

4),  161c,  187. 

Napier,  Foster  v.  (74  Ala.  393),  391. 
Nash,  Abbott  v.  (35  Minn.  451),  157. 

v.  Berkmeir  (83  Ind.  536),  38. 

,  Read  r.  (1  Wils.  305),  157,  211. 

Nason  v.  Grant  (21  Me.  160),  60. 
Natchez  r.  Vandervelde  (31  Miss.  706), 

69,  268. 

Nathan,  Fox  v.  (32  Conn.  348),  35. 
Nat.  Bank  of  — .     Indexed  under  name 

of  place. 
National  Building  Association,  Koch  v. 

(137  III.  497),  454,  477. 
Nat.  Fire  Ins.  Co.  v.  Loorais  (11  Paige, 

N.  Y.  431),  365. 
Nat.  Security  Bank,  Carr  v.  (107  Mass. 

45),  166«,  1666. 
National  Stock  Yards  v.  Wiggins  Ferry 

Co.  (112111.  384),  31. 
Naw  v.  Jackman  (58  Iowa,  359),  471. 
Nay  v.  Mograin  (24  Kans.  *  75),  493. 
Naylor,  Doolittle   v.  (2   Bosw.   N.  Y. 

206),  202. 
,  Grant  e.  (4  Cranch,  U.  S.  224), 

373. 

Neagle  r.  Kelly  (146  111.  460),  508. 
Neal  r.  Gregory  (19Fla.  356),  461. 

t'.  Neal  (69  Ind.  419),  476. 

Neale,  Hey  man  v.  (2  Cainp.  337),  351, 

353. 
v.  Neales  (9  Wall.  U.  S.  1),  457u, 

458,  491,  491«. 

,  Smith  v.  (2  C.  B.  N.  s.  67),  288. 

Neaster,  Birchell «?.  (36  O.  St.  331),  199a, 

212,  214. 
Neaves  v.  Mining  Co.  (90  N.  C.  412), 

370a,  373. 
Needham,  Liddle  v.  (39  Mich.  147),  117, 

1176. 
Neelson  v.  Sanborne  (2  N.  H.  413),  391, 

404. 
Negley  r.  Jeffers  (28  Ohio  St.  90),  117, 

421. 


Neil  v.  Cheves  (1  Bail.  S.  C.  Law,  537), 

424. 

,  Johnson  v.  (4  Ala.  166),  77. 

Nelson  r.  Boynton  (3  Met.  Mass.  396), 

191,  204,  212,  214. 
v.  Chicago  Nat.  Bank  (48  III.  36), 

172. 
v.  Dubois  (13  Johns.  N.  Y.  175), 

3o2a. 
c.  Forgey  (4  J.  J.  Marsh.  Ky.  569), 

123. 

v.  Carey  (114  Mass.  418),  27. 

v.  Hardy  (7  Ind.  364),  187. 

v.  Masterton  (2  Griffith,  Ind.  524), 

463 

,  Morton  r.  (145  III.  586),  90. 

,  Servis  v.  (14  N.  J.  Eq.  94),  445a. 

v.  Shelby  Mfg.  and  Imp.  Co.  (96 

Ala.  515),  118,384. 

,  Thomas  v.  (69  N.  Y.  118),  34. 

v.  Worrall  (20  Iowa,  469),  445a. 

Nesham  r.   Selby  (L.  R.  7   Ch.  App. 

406),  371a. 
Nesmith,  Swan  v.  (7  Pick.  Mass.  220), 

213 

Nestal  v.  Sch'mid  (29  N.  J.  Eq.  458),  96. 
Nettervill,  Colt  v.  (2  P.  Wms.  304),  296. 
Nettleship,  Ex  parte  (2  M.  D.  &  De  G. 

124),  62 
Nettleton  v.  Sikes  (8  Met.  Mass.  34), 

245. 
,  Tileston  v.  (6  Pick.  Mass.  609), 

195,  197. 
Neufville  r.  Stuart  (1  Hill,  S.  C.  Eq. 

159),  382. 
Neumann  v.  Schroeder  (71  Tex.  81), 

172. 
Nevada  Bank  r.  Portland  Nat.  Bk.  (59 

Fed.  Rep.  341),  181,  370c. 
Neville  v.  State  (73  Tex.  629),  345Vi. 
Newbern,  Wade  v.  (77  N.  C.  460),  119, 

355. 
Newbery   i\    Armstrong    (Moo.  &  M. 

389),  400. 

v.  Wall  (65  N  Y.  484),  384. 

r.  Wall  (84  N.  Y.  576),  351. 

New  Brunswick    Bank   v.   Mettler   (2 

Bosw.  N.  Y.  392),  187. 
Newburger  r.  Adams  (02  Kv.  26),  384. 
Newby  v.  Rogers  (40  Ind.  9),  363,  365. 

,  Shuder  r.  (85  Tenn.  348),  134. 

Newell  v.  Cochran  (41  Minn.  374),  2616, 

262. 

r.  Ingraham  (15  Vt.  422),  197. 

,  Kimball  v.  (7  Hill,  N.  Y.  116), 

156. 

r.  Newell  (13  Vt.  24),  76,  451. 

v.  Raclford  (L.  R.  3  C.  P.  52),  373, 

375a. 
Newhall,  Atherton  ».  (123  Mass.  141), 

31(W,  3276,  334o. 
,  Loomis  r.  (15  Pick.  Mass.  159), 

147,  187,  191. 


Ixxxvi 


TABLE  OF  CASES. 


Newkirk  v.  Marsliall  (35  Kans.  77),  467. 

v.  Place  (47  N.  J.  Eq.  477),  97,  98. 

,  Ringgold    v.  (3  Pike,  Ark.  97), 

391. 
Newman,  Bexar  Building  Assoc.  v.  (25 

S.  W.  Rep.  Tex.  461),  188. 
,  Donaldson  v.   (9  Mo.  App.  235), 

508. 
,  Hassinger  v.  (83  Ind.  124),   165, 

212. 
v.  Morris  (4  Harr.  &  M.  Md.  421), 

293. 
Newnan  v.  Carroll  (3  Yerg.  Tenn.  18), 

493. 
Newton,Drake  v.  (23  N.  J.  L  Ill),  38. 

,  Logsdon  v.  (54  Iowa,  448),  354. 

v.  Preston  (Prec.  Ch.  103),  93. 

v.  Swazey  (8  N.  H.  9),  487,  499. 

,  Wheeler  v.  (Prec.  Ch.  16),  355. 

New  witter,  Mentz  v.  (122  N.  Y.  491), 

373. 
N.  Y.  Central  R.  R.,  Day  v.  (22  Hun, 

N.  Y.  416),  118. 
New  York  Central  R.  R.,  Day  v.   (51 

N.  Y.  583),  122a. 

,  O'Neil  v.  (60  N.  Y.  138),  138/ 

,  Smith  v.  (4  Keyes,  N.  Y.  180), 

306. 
New  York   Mining  Co.,  O'Neil    v.  (3 

Nev.  141),  305. 
Niagara  Ins.  Co.  v.  Greene  (77  Ind.  590), 

278a. 
Nibert  v.  Baghurst  (47  N.  J.  Eq.  201), 

348,  465,  476. 

Nice,  Haynes  v.  (100  Mass.  327),  138c. 
Nichol  v.  Ridley  (5  Yerg.  Tenn.  63),  346. 
Nicholle  v.  Plume  (1  Carr.  &  P.  272), 

333 
Nichols  v.  Allen  (23  Minn.  542),  391. 

,  Boston  ».  (47  111.  353),  508. 

,  Clark  v.  (107  Mass.  547,,  305. 

,  Gallagher  v.  (60  N.  Y  438),  174. 

Nichols  v.  Johnson  (10  Conn.  192),  373, 

374,  385. 
v.  Nichols    (1  A.  K.  Marsh.  Ky. 

166),  129. 

v.  Weaver  (7  Kans.  373),  272. 

,  Weld  v.  (17  Pick.  Mass.  538),  159, 

188. 
Nicholson  v.  Bower  (1  El.  &  E.  172), 

316e,  3276. 
Nickells  v.  Atherstone  (10  Q.  B.  944), 

47,  53. 
Nickols,  Goodrich  v.  (2  Root,  Conn.  498), 

134,  152. 

Nicolay,  Baltzen  v.  (53  N.  Y.467),  135n. 
Nicoll,  M'Lean  v.  (7  Jur.  N.  8.  999), 

87 la,  384. 

Nicolson.  Jackens  v.  (70  Ga.  198),  369. 
Niesly,  Bassler  v.  (2  Serg.  &  R,  Pa. 

352),  467. 
Niggernan,  Parker  v.  (6  Mo.  App.  546), 

118. 


Niland  v.  Murphy  (73  Wise.  326),  116. 
Niles,  Cayuga  R.  R.  v.  (13  Hun,  N.  Y. 

170),  28,  272. 

,  Olmstead  ».  (7  N.  H.  522),  245. 

Nippolt  v.   Kammon   (39   Minn.    372), 

385. 
Niver,  Smith  v.  (2  Barb.  N.  Y.  180),  50, 

53,66. 
Nixon,  Gale  v.   (6  Cowen,  N.  Y.  445), 

366. 

,  Morris  v.  (1  How.  U.  S.  118),  111. 

Noakes  v.  Morey   (30  Ind.   103),  3426, 

359. 
Noble  v.  Bosworth  (19  Pick.  Mass.  314), 

234a. 

,  Schultz  v.  (77  Cal.  79),  197. 

v.  Ward  (L.  R.  1  Exch.  117),  411, 

414, 435. 

Noblett,  Marley  v.  (42  Ind.  85),  278n. 
Noel's  Exr.  v.  Gill  (84  Ky.  241),  44  Ic. 
Nones  v.  Homer  (2  Hilt.  N.  Y.  116), 

126,  291. 
Noonan,  Curtis  v.  (10  Allen,  Mass.  406), 

27a. 

,  Johnson  v.  (16  Wise.  687),  157. 

Norcross,  Corbett  v.  (35  N.  H.  99),  74a. 
Norfolk  Bk.,  Holman  v.  (12  Ala.  369), 

379. 
Norman    v.  Phillips    (14    Mees.  &  W. 

277),  31 6a.  3%,  321,  333. 
Norris  v.  Blair  (39  Ind.  90),  376. 

».  Graham  (33  Md.  56),  197. 

,  Johns  ».  (22  N.  J.  Ch.  102),  95. 

v.  Morrill  (40  N.  H.  395),  39. 

,  Sandford  v.  (4   Abb.  N.  Y.  App. 

Dec.  144),  94,  96n. 
,  Schneider  v.  (2  Maule  &  S.  286), 

352,  355o,  356,  357,  365. 

,  Squier  v.  (1  Lans.  N.  Y.  282),  364. 

v.  Wilkinson  (12  Ves.  192),  62. 

North  17.  Forest    (15  Conn.  400),  134, 

296a,  454. 

-  w.  Mendel  (73  Ga.  400),  348,  380. 
—  v.  Robinson  (1  Duv.  Ky.  71),  188. 

North   Carolina  R.  R.,   Green    v.  (77 

N.  C.  95),  122. 
North  Staffordshire  R.  R,  v.  Peck.  (1 

E.  B.  &  E.  100),  348. 
Northern  v.  State  (1  Ind.  112),  303. 
Northern  Pacific  R.  R,  Small  v.   (20 

Fed.  Rep.  753),  475. 
Northey,  Tarr  v.  (17  Me.  113),  159. 
Norton  v.  American  Ring  Co.  (1  Fed. 

Rep.  684),  345a. 

,  Atwood  v.  (31  Ga.  507),  272. 

,  Crop  17.  (9  Mod.  233),  85,  88. 

v.  Gale  (95  111.  533),  378. 

v.  Huxley  (13  Gray,  Mass.  285), 

183. 
— ,  Jordan  v.  (4  Mees.  &  W.  155), 

331 
-,  Moses  'v.  (36  Me.  113),  198 

-  v.  Preston  (15  Me.  14),  451. 


TABLE   OF   CASES. 


Ixxxvii 


Norton  v.  Simonds  (124  Mass.  10),  138A. 

,  Walker  v.  (29  Vt.  226),  167. 

v.  Webb  (35  Me.  218),  231. 

Norwood,  Itigby  v.  (34  Ala.  129),  891, 

406,  608,  616a,  619. 
Noyes  v.  Chapin  (6  Wend.  N.  Y.  461), 

77. 
v.  Humphreys  (11  Grat.  Va.  636). 

147,  197,  198,  212. 

,  Pitkin  v.  (48  N.  H.  294),  303. 

Nugent,  Goss  r.  (5  Barn.  &  Ad.  68), 

409a,  414,  417,  434. 
a.  Teauhout  (67  Mich.  571),  117, 

118. 

v.  Wolfe  (111  Pa.  St.  471),  161c. 

Nunez  v.  Morgan  (77  Cal.  427),  130. 
Nunn  v.  Fabian   (L.  R.  1  Ch.  App.  35), 

479. 

,  Mann  v.  (43  L.  .1.  Q.  B.  241),  117a. 

Nuns  v.  Sherman  (43  Mich.  45),  122. 
Nuntingfield,  Snelling  e.  (1  C.  M.  R. 

20),  118. 
Nussey,  Walker  v.  (16  Mees.  &  W.  302), 

320,  337. 

Nuth,  Woodcock  v.  (8  Bing.  170),  66. 
Nutt,  Cummins  v.  (Wright,  Ohio,  713), 

74,  487. 
Nuttall,  Lees  v.  (I  Russ.  &  M.  63),  96, 

111. 
Nye,  Hausman  v.  (62  Ind.  486),  3276 

334a. 
Nysonger,  Stern  v.  (69  Iowa,  612),  272, 

461. 


O. 


OaKley  v.  Monk  (3  Hurlst.  &  C.  705), 

39. 
Oakman,  Poor  v.  (104  Mass.  309),  27. 

v.  Rogers  (120  Mass.  214),  371a. 

O'Bannon  v.  Chumasero  (3  Mont.  419), 

405. 

,  White  v.  (86  Ky.  93),  71. 

O'Brien,  Rosseau  v.  (4  Bissell,   C.  C. 

395),  96. 

,  Durfee  v.  (16  R.  I.  213),  289. 

Ocmulgee   Mills,    Phillips   v.    (66   Ga. 

633),  138e. 
Odell  v.  Montross  (68  N.  Y.  499),  229, 

441a. 

Odem,  Byrd  v.  (9  Ala.  755),  487. 
O'Donnell,  Barr  v.  (76  Cal.  469),  509. 

,  Cross  v.  (44  N.  Y.  661),  316c. 

v.  Leman  (43  Me.  168),  348. 

v.  Smith  (2  E.  D.  Smith,  N.  Y. 

124),  172. 

O'Fallon  v.  Clopton  (89  Mo.  284).  457a. 
Ogden,  Bailey  v.  (3  Johns.  N.  Y.  99), 

855,  367,  374. 

Ogilvie  v.  Foljambe  (3  Meriv.  63),  367. 
Ogle  v.  Lord  Vane  (L.  R.  3  Q.  B.  272), 

426. 


Ogsbury  v.  Ogsbury  (115  N.  Y.  2'JO), 

491«. 
O'Hara  v.  O'Neil  (7  Bro.  P.  C.  227),  98, 

99. 

,  West  v.  (55  Wise.  645),  197,  199. 

O'Herlihy  v.  Hedges  (1  Schoales  &  L. 

123),  451. 
Ohio  and  Miss.  R.  R.  r.  Trapp  (4  Ind. 

App.  Ct.  69),  38. 

Ohlander,  Dexter  v.  (89  Ala.  262).  505. 
Ohlert,  Whiting  v.  (62  Mich.  462).  272. 
O'Keefe,  Boutwell  v.  (32  Barb.  N.  Y. 

434),  451. 
Okeover,  Howard  v.  (3  Swanst.  421), 

607. 
Olcott  v.  Bynum  (17  Wall.  U.  S.  44), 

86. 
Old    Colony    R.  R.  r.  Evans  (6  Gray, 

Mass.  25),  344,  365,  366. 
Oldham,  Kimmins  v.  (27  W.  Va.  258), 

118. 

r.  Litvhford  (2  Vern.  506),  94. 

Old  National  Bank  v.  Findley  (131  Ind. 

225),  135. 

O'Linn,  Rose  v.  (10  Neb.  364),  191. 
Oliphant  i.-.  Patterson  (66  Pa.  St.  368), 

188. 
Oliver   v.  Alabama   Life  Ins.  Co.  (82 

Ala.  417),  3466,  365. 
v.  Hunting  (L.  R.  44  Ch.  D.  205), 

348. 

Ollever  v.  Duval  (32  S.  C.  273),  197. 
Olmius,  Dixon  v.  (1  Cox,  414),  442. 
Olmstead  v.  Greenly  (18  Johns.  N.  Y. 

12),  202.. 
,  Kilbourn  v.  (5  Mackey,  D.  of  C 

304),  261rf. 

v.  Niles  (7  N.  H.  522),  245. 

O'Mahoney,  Andrews  v.  (112  N.  Y.  567), 

265. 
O'Mally,  Howe  v.  (1  Murph.  N.  C.  287), 

270. 
Onderdonk  v.  Lord  (Hill  &  D.  N.  Y. 

129),  231. 

O'Neal,  Sullivan  v.  (66  Tex.  433),  354. 
Oneida  County,  Alexander  v.  (76  Wise. 

66),  327. 
O'Neil  v.  New  York  Cent.  R.  R.  (GO  N. 

Y.  138),  138/. 
v.  New  York  Mining  Co.  (8  Nev. 

141),  306. 
,  O'Hara  v.  (7  Bro.  P.  C.  227),  98, 

99. 
O'Niel,  McDonough  v.  (113  Mass.  92), 

90. 
Ontario  Bank  v.  Root  (3  Paige,  N.  Y. 

478),  611. 

Opdyke,  Guest  v.  (31  N.  J.  L.  652),  20. 
Orchard,  Mortimer  v.  (2  Vc-s.  Jr.  243), 

601. 

Ordeman  v.  Lawson  (49  Md.  136),  891. 
O'Reilly  v.  Thompson  (2  Cox,  271), 

454,  460,  492. 


Ixxxviii 


TABLE   OF   CASES. 


Orendorf,  Spear  v.  (26  Md.  37),  479. 
Organ  v.  Stewart  (60  N.  Y.  413),  342u. 
Orman   v.   Hager  (3  New  Mex.  331), 

305. 
Ormond  /-.  Anderson  (2  Bail  &  B.  363), 

306. 
Ormsby,  Ely  v.  (12  Barb.  N.  Y.  570), 

138/,  342. 
Orrell  v.  Coppock  (26  L.  J.  Ch.  269), 

164. 

Ortloff  v.  Klitzke  (43  Minn.  154),  337. 
Ortman,  McEwan  v.    (34  Mich.   325), 

267. 
Ortmann,  Sovereign  v.  (47  Mich.  181), 

26. 
Osbaldiston,  Ewing  v.  (2  Mylne  &  C. 

53).  120. 
Osborn  v.  Emery  (51  Mo.  App.  408), 

197. 

v.  Plielps   (19  Conn.  63),  374,  454. 

Osborne  v.  Baker  (34  Minn.  307),  408a. 
,  Damon   v.  (1    Pick.   Mass.  476), 

337 
,  Gheen  v.  (11   Heisk.   Tenn.  61), 

457a. 
i;.  Kimball    (41  Kans.   187),   131, 

276a,  460a. 

,  Lapham  v.  (20  Nevada,  168),  118. 

,  Towers  v.  (1  Stra.  506),  293,  300. 

Osgood,  Bruce  v.  (113  Jnd.  3bO),  74. 
,  Middlesex  Co.  v.  (4  Gray,  Mass. 

447),  611. 
,  Vielie  v.  (8  Barb.  N.  Y.  130),  230, 

352,  356. 

Osment  v.  McElrath  (68  Cal.  466),  278«. 
Osterhont,   Morris  v.'  (55  Mich.  262), 

199 
O'Sullivan,  Murphy  v.  (18  Ir.  Jur.  Ill), 

276,  282a. 

v.  Overton  (56  Conn.  102),  373. 

Otis  o.  Haseltine  (27  Cal.  80),  406. 

u.  Payne  (86  Tenn.  663),  348. 

,  Stilwell   ».  (2   Hilt.  N.   Y.   148), 

187. 

Otrich,  McClure  v.  (118  111.  320),  508. 
Ott  v.  Garland  (7  Mo.  28),  121. 
Ottley,   Carpenter  v.  (2   Lans.  N.  Y. 

451),  94. 
Otto  v.  Bullion  &  Exchange  Bank  (59 

Fed.  Rep.  256),  135. 
Otty,  Davies  v.  (33  Beav.  540),  507n. 
Cutwater   v.   Dodge    (6  Wend.  N.  Y. 

397),  327. 
Overbaugh,  Young  v.  (76  Hun,  N.  Y. 

151),  487. 

Overman  i:  Kerr  (17  Iowa,  485),  354ft. 
Overton,  O'Sullivan  v.  (56  Conn.  102), 

373. 
Owen  v.  Davies  (1  Ves.  Sr.  82),  461. 

17.  Field  (12  Allen,  Mass.  457),  31. 

,  French  v.  (2  Wise.  250),  28. 

v.  Thomas  (3  Mylne  &   K.  353), 

354a,  385. 


Owens,   Boyce    v.    (2   McCord,   S.   C 

Law,  208),  204. 

v.  Lewis  (46  Ind.  488),  256,257a. 

Owings   v.  Baldwin   (1  Md.  Ch.   Dec. 

120),  493. 
v.  Baldwin  (8  Gill,  Md.  337),  454, 

467. 
,  Small   v.  (1  Md.  Ch.  Dec.  363), 

507,  511,  619. 
Oyer,   McDowell  v.  (21  Pa.  St.  417), 

124,  226. 
Oyster,  Bowers  v.  (3  Penna.  Rep.  239), 

64. 


P. 


Pace,  Bohannon  v.  (6  Dana,  Ky.  194), 

135. 
,  Briles   v.   (13   Ired.   N    C.  Law, 

279),  41,  77. 

17.  Marsh  (1  Birig.  216),  402. 

Pacific  Co.,  Hoover  v.   (41   Mo.   App. 

317),  37«,  38. 

Packard,  Colman  o.  (16  Mass.  39),  231. 
v.  Richardson  (17  Mass.  121),  360, 

3816,  391. 
Packer  v.  Benton  (35  Conn.  343),  166a. 

v.  Willson  (15  Wend.  343),  405. 

Packet   Co.  v.  Sickels   (5  Wall.  U.  S. 

580),  282. 
Padelford,   Buchanan  v.  (43   Vt.  64), 

1666. 
Padfield,  Padfield  v.  (92  111.  198),  476, 

480. 

Padgett,  Button  v.  (26  Md.  228),  391. 
Page   v.    Monks  (5   Gray,  Mass.  492), 

117,  150. 
v.  Morgan  (L.  R.  15  Q.  B.  D.  228), 

316/. 

v.  Page  (8  N.  H.  187),  84,  93. 

v.  Pierce  (26  N.  H.  317),  65. 

,  Robinson  n.  (3  Russ.  119),  433. 

Paige,  Ellis  v.  (1  Pick.  Mass.  43),  32, 

38. 

v.  Paige  (71  Iowa,  318),  90. 

Pain  17.  Coombs  (1  De  G.  &  J.  46),  482. 

v.  Smith  (2  Mylne  &  K.  417),  62. 

Paine   v.  French   (2  Man.  &  G.  644), 

178. 

v.  Fulton  (34  Wise.  83),  343. 

,  Pierce  v.  (28  Vt.  34),  289. 

Palmer  v.  Anderson  (63  N.  C.  365),  75. 

,  Baldwin  v.  (10  N.  Y.  232),  1176. 

,  Carter  v.  (11  Bligh,  N.  R.  397), 

96,  111. 

,  Gray  v.  (9  Cal.  616),  259,  260. 

,  Howe  v.  (3  Barn.  &  Aid.  321), 

324  327 
,  Jones  'v.   (1    Doug.   Mich.  379), 

391. 
17.  Marquette  Co.  (32  Mich.  274), 

352. 


TABLE    OF   CASES. 


Ixxxix 


Palmer,  Remington  v.  (62  N.  Y.  31), 
117,  1176. 

-  ,  Sackett  v.  (25  Barb.  N.  Y.  179), 

391. 

-  v.  Scott  (1  Russ.  &  M.  391),  366. 
Pancake  v.  Cauffman  (114  Pa.  St.  113), 

441«. 

Parcher,  Bray  v.  (80  Wise.  16),  203. 
Paris,  Garfield  v.  (96  U.  S.  557),  320, 

321,  334,  335,  338. 

-  v.  Strong  (51  Ind.  339),  272,  278. 
Parish,    Blauknall   v.  (6  Jones,   N.   C. 

Eq.  70),  360. 

-  ,  Champlin    v.    (11    Paige,   N.    Y. 

405),  365,  518. 

-  ,  Davis  v.  (Litt.  Ky.  Sel.  Cas.  153), 

267. 

-  v.  Gilmanton  (11  N.  H.  298),  65. 
Park,  Hubon  v.  (116  Mass.  541),  188. 

-  ,  Mclntyre  v.  (11  Gray,  Mass.  102), 

14a. 
Parke,  Dilts  v.  (1  South.  N.  J.  219), 

187. 
Parker,  Bacon  v.  (137  Mass.  309),  118, 

119. 

-  ,  Baldey  v.  (2  Barn.  &  C.  37),  314, 

325,  335. 

-  v.  Barker  (2  Met.  Mass.  423),  65, 

267. 

-  v.  Bodley  (4  Bibb,  Ky.  102),  80, 

376,  382a. 

-  ,  Browning  v.  (17  R.  I.  183),  135. 

-  v.  Dillingham  (129  Ind.  542),  204. 

-  ,    Dung   u.    (52   N.    Y.   494),   127, 

135a. 

-  i'.  Heaton  (55  Ind.  1),  193,  457. 

-  v.  Kane  (22  How.  U.  S.  1),  60. 

-  ,  Mead  v.  (115  Mass.  413),  385. 

-  ,  Murray  v.  (19  Beavan,  Pa.  308), 


-  r.  Niggernan  (6  Mo.    App.    646), 

118. 

-  v.  Parker   (1   Gray,   Mass.   409), 

354,  3546. 

-  ,  Propert  v.  (1   Russ.  &  M.  625), 

357. 

-  v.  Schenck  (28  Barb.  N.  Y.  38), 

308. 

—  ^  v.  Smith   (1    Coll.  Ch.  608),   357, 
454,  460. 

-  ,  Sparling  r.  (9  Beav.  450),  258. 

-  r.  Staniland  (11  East,  362),  241. 

-  Sweatman  v.  (49  Miss.  19),  1666. 

-  v.  Tainter   (123  Mass.  185),  118, 

385. 

-  v.  Wallis  (5  El.  &  B.  21),  316A. 
Parkes,  Whipple  v.  (29  Mich.  369),  117. 

-  ,  Whipple  r.  (29  Mich.  369),  126. 
Parkhurst,  Jackson  »>.  (4  Wend.  N.  Y. 

376),  64. 

-  v.  Van  Cortlandt  (1  Johns.  N.  Y. 

Ch.   273),  366,  452,  456,  487, 
490,  492,  493. 


Parkhurst,  Whitridge  v.  (20  Md.  62) 

439. 
Parks,  Dearborn  v.  (5  Greenl.  Me.  81), 

1666. 

p.  Francis  (50  Vt.  626),  2S3. 

v.  Hazlerigg  (7  Blackf.  Ind.  536), 

9. 
r.  Peoples  Bank  (31  Mo.  App.  12), 

385. 
Parlin,  Blake  v.  (22  Me.  395),  198. 

,  Lash  v.  (78  Mo.  39),  373. 

Pariuenter,  Ackley  v.  (98  N.  Y.  425), 

187,  206,  214a. 
Parrish  v.  Koons  (I  Pars.  Pa.  Eq.  Cas. 

79),  17,  366. 
Parry,  Ex  /xzrte  (3  M.  D.  &  De  G.  252), 

62a. 

r.  Spikes  (49  Wise.  384),  391. 

Parshley,  Woodbury  v.  (1  N.  H.  237), 

28. 

Parsons  v.  Camp  (11  Conn.  525),  27. 
,  Hargreaves   v.   (13  Mees.  &  W. 

561),  188. 

v.  Loucks  (48  N.  Y.  17),  302.  306. 

v.  Plielan  (134  Mass.  109),  90. 

v.  Walter  (3  Doug.  14,  note),  163. 

v.  Welles  (17  Mass.  419),  66. 

,  Westfall  v,  (16  Barb.  N.  Y.  645), 

169. 

Parteriche  v.  Powlet  (2  Atk.  383),  411. 
Parton  v.  Crofts    (16   C.   B.  N.  8.  11), 

344,  351,  369. 
Partridge,  Briggs   v.    (64  N.  Y.   357), 

373. 

,  Chapman  v.  (5  Esp.  256),  351. 

,  Sanders  v.  (108  Mass  546),  8,  42. 

,  Stocker  v.  (2   Rob.  N.  Y.  193), 

348. 

,  Wood  v.  (11  Mass.  488),  42. 

Pascal,  Hershman  i>.  (4  Ind.  App.  Ct. 

330),  463. 

Paslily,  Jones  v.  (67  Mich.  459),  75. 
Pasley  v.  Freeman  (3  T.  R.  51),  181. 
Patchin  v.  Swift  (21  Vt.  292),  391,  404. 
Paternoster,  Webb  r.  (Poph.  151),  23. 
Patmor  v.  Haggard  (78  111.  607),  391. 
Patrick,  Adams  v.  (30  Vt.   516),  498, 

508. 

,  Davis  v.  (141  U.  S.  479),  214, 214a. 

v.  Sears  ( 19  Fla.  856),  385. 

Patten,  Duffy  v.  (74  Me.  396),  279. 

v.  Gurney  (17  Mass.  182),  181. 

,  Huntress  v.  (20  Me.  28),  191. 

,  James  v.  (6  N.  Y.  9),  357. 

,  Simpson  v.  (4  Johns.  N.  Y.  422), 

170. 
Patterson,  Barney  v.  (6  Harr.  &  J.  Md. 

182),  78,  346. 
».  Cunningham  (12  Me.  506),  152 

461. 

,  Doggett  v.  (18  Tex.  158),  268. 

v.  Hawley  (33  Neb.  440),  269. 

,  Ingles  v.  (36  Wise.  373),  491. 


xc 


TABLE  OF  CASES. 


Patterson,  Payne  v.  (77  Pa.  St.  134),  95, 

96a. 

v.  Ware  (10  Ala.  444),  499. 

,  Woodford  v.  (32  Barb.  N.  Y.  630), 

293 

v.  Yeaton  (47  Me.  308),  60,  449. 

Pattina,  Draper  v.  (2  Speers,  S.  C.  Law, 

292),  352. 
Pattison  v.  Horn  (1  Grant,  Pa.  301),  95, 

226. 
Patton  v.  Beecher  (62  Ala.  579),  267, 

439. 

v.  Chamberlain  (44  Mich.  5),  100. 

,  Keath  v.  (2  Stew.  Ala.  38),  118. 

o.  M'Clure  (Mar.  &  Y.  Tenn.  333), 

448. 

v.  Mills  (21  Kans.  *163),  188,  214. 

,  Shipley  v.  (21  Ind.  169),  291. 

,  Violett  v.  (5  Cranch,  U.  S.  142), 

391. 
,  Worth  v.  (5  Ind.  App.  Ct.  272), 

118. 

Paulin,  Hampton  v.  (4  Bing.  264),  208. 
Pawelski  v.  Hargreaves  (47  N.  J.  Law, 

334),  302. 
Pawle   i).  Gunn    (4   Bing.  N.  C.  445), 

116,  296. 
Paxson,  Dehority  v.  (97  Ind.  253),  320, 

337. 
,  Ellet  v.  (2  Watts  &  S.  Pa.  418), 

126,  226. 
Payn,  Lewis  v.  (8  Cowen,  N.  Y.  71), 

59. 
Payne  v.  Baldwin  (14  Barb.  N.  Y.  570), 

199. 
,  Gray  v.  (16   Barb.   N.   Y.   277), 

3-20. 

r.  Johnson  (1  Tyrw.  283  note),  138. 

,  Killough  v.  (52  Ark.  174),  212. 

,  Lucas  v.  (7  Cal.  92),  187. 

,  Otis  v.  (86  Tenn.  663),  348. 

v.  Patterson  (77  Pa.  St.  134),  95, 

96a. 
,  Searight  v.   (2  Tenn.  Ch.    175), 

164. 
Payson  v.  West   (Walker,  Miss.  615), 

131,  451. 
Peabody  v.  Harvey  (4  Conn.  119),  164, 

197. 
v.  Speyers  (56  N.   Y.   230),   297, 

348. 

Peach,  Duvall  v.  (1  Gill,  Md.  172),  268. 
Peachy,  Young  v.  (2  A tk.  254),  91. 
Peacock  v.  Purvis  (2  Brod.  &  B.  362), 

506 
Peaple,  Aldenburgh  v.  (6   Carr.  &  P. 

212),  47. 
Pearce  v.  Blagrave  (3  Com.  Law,  338), 

195. 

,  Desloge  v.  (38  Mo.  588),  28. 

,  Lance  v.  (101  Ind.  595),  198. 

,  Miller  v.  (6  Watts  &  S.  Pa.  97), 


Pearce,  Wren  v.  (4  Smedes  &  M.  Miss, 

91),  391. 

Pearl,  Child  v.  (43  Vt.  224),  2156. 
Pearse,  Ex  parte  (Buck,  525),  62a. 
Pearson,   Basford   v.    (9   Allen,   Mass. 

387),  126,  146,  118,  126. 

v.  East  (36  Ind.  27),  478. 

Pease,  Jones   v.  (21  Wise.   644),  465, 

475. 
Peate  v.  Dicken    (1   Cromp.   M.  &  R. 

422),  405. 
Peck,  Chase  v.  (21  N.  Y.  584),  64. 

,  Dawes  v.  (8  T.  R.  330),  327a. 

,  Gerhart   v.  (42   Mo.  App.   644), 

370«. 

v.  Goff  (25  Atl.  Rep.  R.  I.  690), 

187. 

,  North  Staffordshire  R.  R.  v.  (1  E. 

B.&E.  100),  348. 

v.  Thompson   (15   Vt.  637),  157, 

159. 

v.  Vandemark  (99  N.  Y.  29),  348. 

v.  Williams  (113  Ind.  256),  130. 


Peekham  v.  Balch  (49  Mich.  179),  478. 

v.  Faria  (3  Doug.  14),  163. 

,  Macomber  v.  (16  R.  I.  485),  441e. 


Pedgriph,  Doe  v.  (4  Carr.  &  P.  312),  354. 
Peebles  v.  Reading  (8  Serg.  &  It.  Pa. 

484),  81. 

Peek  v.  Peek  (77  Cal.  106),  459,  474. 
Peele,  Cox  v.  (2  Bro.  C.  C.  334),  267. 
Peer,  Drew  v.  (93  Pa.  St.  234),  24. 
Peet,  Rice  v.  (15  Johns.  N.  Y.  503),  134, 

152. 

Peifer  v.  Landis  (1  Watts,  Pa.  392),  466. 
Peiper,  Brady  v.  (1  Hilt.  N.  Y.  61),  43. 
Peirce  v.  Corf  (L.  R.  9  Q.  B.  210),  346, 

354,  369. 
Pell,  Stephens  v.  (2  Cromp.  &  M.  710), 

187. 
Pelletier,  Miller  v.  (4  Edw.  N.  Y.  Ch. 

102),  365. 
Peltier  v.  Collins  (3  Wend.  N.  Y.  459), 

351,  384. 
Pembroke  v.  Thorpe    (3   Swanst.  441, 

note),  76,  452,  460. 

Pendell,  Bresler  v.  (12  Mich.  224),  197. 
Pendery,  Grant  v.  (15  Kans.* 236).  1666. 
Pendleton,  Clark  v.  (20  Conn.  495),  215, 

275,  279,  280. 
Pengall  v.  Ross  (2  Eq.   Ca.  Abr.  46), 

462,  469,  490. 
Penn,  Auer  v.  (92  Pa.  St.  444),  55. 

,  Cuff  v.  (1  Maule  &  S.  21),  411. 

Steel  Co.,  Green  v.  (75  Md.  109), 

282. 
Pennell  v.  Pentz  (4  E.  D.  Smith,  N.  Y. 

639),  198. 

Pennie,  McCann  v.  (100  Cal.  547),  505. 
Penniman  t>.  Hartshorn  (13  Mass.  87), 

357,  358,  365. 
,  Van  Rensselaer  v.  (6  Wend.  N.  Y. 

569),  48,  51. 


TABLE   OF  CASES. 


XC1 


Penninger  v.  Reilley  (44  Mo.  App.  255), 

508. 
Pennsylvania  Co.  r.  Dolan  (6  Ind.  App. 

Ct.  109),  276. 
Penny,   Endicott  v.  (14  Smedes  &  M. 

Miss.  144),  369. 
Pennybncker  v.  Leary  (65  Iowa,  220), 

202. 
Pennypacker,  Harvey  v.   (4   Del.   Ch. 

445),  90. 

Pen  ton  v.  Robart  (2  East,  88),  236. 
,  Simpson  v.  (2  Cromp.  &  M.  430), 

199. 
Pentz,  Pennell  v.  (4  E.  D.  Smith,  N.  Y. 

639),  198. 
People  v.  Beebe  (1  Barb.  N.  Y.  379), 

298. 

v.  Darling  (47  N.  Y.  666),  38. 

v.  Goodwin  (5  N.  Y.  668),  26. 

v.  Rickert  (8  Cow.  N.  Y.  226),  38, 

39. 
Peoples  Bank,  Parks  v.  (31  Mo.  App. 

12),  385. 
Peoria  County,  Bourland  v.  (16  111.  538), 

346. 
and  Eastern  R.  R.,  Hall  v.  (143  111. 

163),  465. 

Peralta  v.  Castro  (6  Cal.  364),  507a. 
Percival   v.  Blake  (2  Carr.  &  P.  614), 

333 
,  Wright  v.  (8  L.  J.  Q.  B.  N.  s.  258), 

316«. 

Perigal,  Myers  v.  (11  C  B.  90),  258. 
Perine,  Barnes  v.  (15  Barb.  N.  Y.  249), 

233. 
Perkins  v.  Cheairs  (2  Baxt.  Tenn.  194), 

86. 

v.  Clay  (54  N.  H.  518),  2826. 

,  Henderson  v.  (21  S.  W.  Rep.  Ky. 

1035),  385. 

v.  Pitts  (11  Mass.  125),  73. 

.Porter  v.  (5  Mass.  233),  71. 

v.  Sterne  (23  Tex.  561),  65. 

,  Watkins  v.  (1  Ld.  Raym.224),  198. 

Perley  v.  Spring  (12  Mass.  297),  161c, 

163. 

Perrine  r.  Leachman  (10  Ala.  140),  605. 
Perry,  Allison  v.  (28  111.  App.  Ct.  396), 

259. 

,  Allison  v.  (130  111.  9),  259. 

v.  McHenry  (13  111.  227),  86,  96. 

,  Mather  v.  (2  Denio,  N.Y.  162),  178. 

,  Meach   v.  (1  D.  Chip.  Vt.  191), 

457a. 

v.  Provident  Ins.  Co.  (99  Mass. 

162),  36. 

p.  Swasey  (12   Cush.   Mass.   36), 

1666. 
Persifull  v.  Boreing  (22  S.  W.  Rep.  Ky. 

440),  131. 
Personette  v.  Pryme  (34  N.  J.  Eq.  26), 

259 
Peter  v.  Compton  (Skin.  353),  274, 290. 


Peterborough  R.  R.,  Jacobs  v.  (8  Cush. 

Mass.  223),  448. 
Peterman,  Jones  v.  (3  Serg.  &  R.  Pa. 

643),  38,  456,  461,467,  477. 
Peters  v.  Barnes  (16  Ind.  219),  42. 

v.  Westborough  (19  Pick.  Mass. 

364),  281a,  282a. 

Co.,  Cool  v.  (87  Ind.  531),  245. 

Peterson,  Doss  v.  (82  Ala.  253),  193. 

,  Ruppe  v.  (67  Mich.  437),  156. 

Petrick  v.  Ashcroft  (19  N.  J.  Eq.  339), 

493. 

—  v.  Ashcroft  (20  N.  J.  Eq.  198),  608. 
Pettee,  Manly  v.  (38  111.  128),  70. 
Pettingill,  Hitchins  v.  (58  N.  II.  386), 

441c,  444a. 
Pettit  v.  Braden  (55  Ind.  201),  199. 
Petty  v.  Kennon  (49  Ga.  468),  31a. 
Peyson  v.  Connifl1  (32  Neb.  269),  157. 
Peyton,  Raborg  v.  (2  Wheat.  U.  S.  385), 

172. 
Pfiffner  v.  Stillwater  R.  R.  (23  Minn. 

343),  487. 

Phelan,  Parsons  r.  (134  Mass.  109),  90. 
Phelps,  City  Bank  v.  (86  N.  Y.  484), 

400. 

,  Derby  v.  (2  N.  H.  515),  272. 

v.  Hendrick  (105  Mass.  106),  294. 

,  Kelly  v.  (57  Wise.  425),  135a. 

v.  Rowe  (75  Hun,  N.  Y.  414),  1666. 

v.  Seely  (22  Grat.  Va.  673),  433. 

Pliene  v.  Popplewell  (12   C.  B.   N.   8. 

334),  65. 

Philbrook  v.  Belknap  (6  Vt.  383),  122. 
Phillimore   v.   Barry    (1   Camp.   513), 

362 
Phillips  v.  Adams  (70  Ala.  373),  376, 

509. 
,  Bateman  v.  (15  East,  272),  373, 

385. 

,  Beck  v.  (5  Burr.  2827),  8. 

v.  Bistolli  (2  Barn.  &  C.  511),  326. 

v.  Crammond  (2  Wash.  C.  C.441), 

90. 
,  Gold  r.   (10  Johns.   N.  Y.  414), 

171. 
v.  Hooker  (Phil.  N.  C.  Eq.  193), 

385. 
— i-  v.  Hunnewell  (4  Greenl.  Me.  376), 

3186. 

v.  Leavitt  (54  Me.  405),  267. 

,  M'Kee  v.  (9  Watts,  Pa.  85),  466. 

,  Norman  v.  (14  Mees.  &  W.  277), 

316a,  816<7,  321,  333. 
v.  Ocmulgee  Mills  (55  Ga.  633), 

138e. 
,  Rodweli  v.  (9  Mees.  &  W.  503), 

251. 
— ^  v.  South  Park  Commissioners  (119 

III.  626).  106. 

v.  Swank  (120  Pa.  St.  76),  385. 

,  Swann  v.  (8  Ad.  &  E.  457),  182, 

Appendix,  p.  683. 


XC11 


TABLE   OF   CASES. 


Phillips  v.  Thompson  (1  Johns.  N.  Y. 

Ch.  131),  28,  270,  456,  492,  493. 
Philpot  >\  Briant  (4  Bing.  717),  190. 

D.  Walcot  (Skin.  24),  215a. 

Phipps  v.  Sculthorpe  (1  Barn.  &  Aid. 

60),  53,  56. 

Phlugar  v.  Pulz  (43  N.  J.  Eq.  440),  463. 
Phyn,  Bell  v.  (7  Ves.  453),  259. 
Physic,  Geary  v.  (5  Barn.  &  C.  234), 

352. 

Picken,  Sherry  v.  (10  Ind.  375),  246. 
Piekerell  c.  Morss  (97  111.  220),  130,  476. 
Pickering  v.  Appleby  (1  Comyns,  354), 

296 
Pickersgill,  Bartlett  v.  (I  Eden,  515), 

90,  94a,  1356,  517. 
Pickett,  Moore  v.  (62  111.  158),  96. 
Picksley,  Heuss  v.  (L.  K.  1  Exch.  342), 

345a,  365. 
Pickwell,  Buck   v.  (27  Vt.   157),  133, 

245,  257,  354«,  376,  382. 
Piedmont  F.  &  M.  Co.,  Piedmont  L.  & 

I.  Co.  17.  (96  Ala.  389),  509. 
Pierce  v.  Colcord  (113  Mass.  372),  4416. 

17.  Hakes  (23  Pa.  St.  242),  126. 

,  Jackson  v.  (2  Johns.  N.  Y.  221), 

451. 

,  Miller  v.  (104  N.  C.  389),  433. 

,  Page  v.  (26  N.  H.  317),  65. 

v.  Paine  (28  Vt.  34),  289. 

,  Richardson  v.  (7  R.  I.  330),  277. 

,  Swift  v.  (13  Allen,  Mass.   136), 

197,  198. 
v.  Woodward  (6  Pick.  Mass.  206), 

143. 

Piercy  y.  Adams  (22  Ga.  109),  505. 
Pierpont  v.  Barnard  (6  N.  Y.  279),  26. 
Pierson  v.  Ballard  (32  Minn.  263),  385. 
,  Godden    v.    (42    Ala.   370),    135, 

161c. 
Piggott,  Clancy  v.  (2  Ad.  &  E.   473), 

388,  404. 
Pigott,  Siau  v.  (1  Nott  &  M.  S.  C.  124), 

205. 
Pike  v.  Brown    (7   Cash.   Mass.   133), 

166,  188,  2Ud. 

,  Buck  v.  (11  Me.  9),  87,  89. 

,  Dorsey  v.  (60  Hun,  N.  Y.  534), 

3196. 
v.  Irwin  (1  Sandf.  N.  Y.  14),  172, 

174. 

v.  Morey  (32  Vt.  37),  451. 

— —  Electric  Co.  v.  Richardson  Drug 

Co.  (42  Mo.  App.  272),  309a. 
Pilkington,  Coles  v.  (L.  R.  19  Eq.  174), 

459,  467. 
Pillans  v.  Van  Mierop  (3  Burr.  1663), 

172,  174,  189. 

Pilley,  Heard  v.  (L.  R.  4  Ch.  648),  96. 
Pilling  v.  Armitage  (12  Ves.  78),  493. 
Pillow  v.  Thomas  (1  Baxt.  Tenn.  120), 

91. 
Pillsbury  v.  Pillsbury  (17  Me.  107),  96. 


Pindal  v.  Trevor  (30  Ark.  249),  467. 
Pingree,   Chesebrough    v.    (72    Mich, 

438),  354. 

Pinkham  v.  Gear  (3  N.  H.  163),  77. 
Pinney  v.  Fellows    (15   Vt.   525),   93, 

100. 
Pinniger,  Surcome  v.  (3  De  G.  M.  &  G. 

571),  440,  459a.  460«,  487. 
Pinnock  «.  Clough  (16  Vt.  500),  89,96. 
Pintoul,  White  v.  (108  N.  Y.  222),  212. 
Piper  v.  Foslier  (121  Ind.  407),  289. 
Pipkin  v.  James  (1  Humph.  Tenn.  325), 

354,  385. 
Pippen,  Manning  v.  (86  Ala.  357),  263, 

509. 
,  Manning  v.  (95  Ala.   537),  263, 

465. 
Pitkin  v.  Long  Island  R.  R.  (2  Barb. 

N.  Y.  Ch.  221),  276a. 

v.  Noyes  (48  N.  H.  294),  303. 

Pitman  v.  Poor  (38  Me.  237),  28,  29. 
Pitney  v.   Glen's    Falls    Ins.    Co.    (65 

N.  Y.  6),  I38f. 

Pitt  v.  Moore  (99  N.  C.  85),  490. 
Pittman  v.  Pittman  (107  N.  C.  159),  80. 
Pitts  v.  Beckett  (13  Mees.  &  W.  743), 

346a,  851,  352,  356. 

,  Perkins  c.  (11  Mass.  125),  73. 

Place,  Newkirk  v.  (47  N.  J.  Eq.  477), 

97,  98. 

Platt,  Fry  v.  (32  Kans.  62),  384. 
Pleasonton   v.  Raughley    (3   Del.   Ch. 

124),  501. 

Pledger  v.  Garrison  (42  Ark.  246),  487. 
Plevins  v.  Downing  (1  C.  P.  Div.  220), 

426a. 
Plimpton  v.  Curtiss  Ho  Wend.  N.  Y. 

336),  278. 

Pline,  Toan  v.  (60  Mich.  385)-,  117. 
Plume,  Nicholle  v.  (1  Car.  &  P.  272), 

333. 
Plumtner,  Alna  v.  (4  Greenl.  Me.  258), 

369,  370a. 

i'.  Breckman  (55  Me.  105),  122. 

,  Champion  v.  ( 1  Bos.  &  P.  N.  R. 

252),  372,  374. 

,  Champion  v.  (5  Esp.  240),  363. 

,  Erskine   v.  (7  Greenl.  Me.  447), 

27,  245,  255n. 

v.  Russell  (2  Bibb,  Ky.  174),  13. 

,  Schoonmaker  v.    (139   111.   612), 

519. 
Plymouth  v.  Hickman   (2  Vern.  167), 

110. 
Plymouth  Comm'rs,  Fuller  v.  (15  Pick. 

Mass.  81),  270. 
Plymouth   Mining   Co.,   Tufts    17.    (14 

Allen,  Mass.  407),  346. 
Podmore  v.  Gunning  (7  Sim.  644),  94. 

107. 

Poland,  Clopper  v.  (12  Neb.  69),  165. 
Polhemus  v.  Hodson  (19  N.  J.  Eq.  63), 

72. 


TABLE   OF  CASES. 


XC111 


Pollock,  Davis  v.  (36  S  C.  544),  385. 
Poison,  De  Medina  v.  (Holt,  47),  39,40. 
Pomeroy  v.  Winship  (12  Muss.  613),  229. 
Ponce  v.  McWhorter  (50 Tex.  662), 487. 
Pond  i--.  Eddy  (113  Mass.  149),  441a. 

v.  Sheean  (132  III.  312),  140,  400. 

Pool,  Duckett  v.  (33  S.  C.  238)  135. 
Poole  v.  Bentley  (12  K&st,  168),  7. 

,  Doe  v.  (11  Q.  B.  716),  49. 

v.  Hintrager  (60  Iowa,  180),  188. 

,  Hollis  v.  (3  Met.  Mass.  350),  20,  39. 

Poor  v.  Oaknian  (104  Mass.  309),  27. 

,  Pitman  v.  (38  Me.  237),  28,  29. 

Poorman  o.  Kilgore  (26  Pa.  St.  365),  467. 
Pope,  Cutler  v.  (13  Me.  377),  255a. 

,  McCarthy  v.  (52  Cal.  561),  117. 

,  Rake  v.  (7  Ala.  161),  289. 

,  Williams  v.  (Wright,  Ohio,  406), 

465. 
,  Zachrisson  v.  (3  Bosw.  N.  Y.  171), 

319a. 

Popham  v.  Eyre  (Lofft,  786),  460,  498. 
Popp  v.  Swanke  (68  Wise.  364),  354a. 
Popplewcll.  Phene"  v.  (12  C.  B.  N.  s. 

334),  55. 
Port  Deposit  Association,  Lamm  v.  (49 

Md.  233),  268. 
Porter,  Arrington  v.  (47  Ala.  714),  430, 

467. 
,'Brothers  v.  (6  B.  Mon.  Ky.  106), 

84,  85,  87. 

v.  Hill  (9  Mass.  34),  71,  73. 

,  Indiana  Mfg.  Co.  v.  (75  Ind.  428), 

165. 

,  Lee  v.  (18  Mo.  App.  377),  1666. 

P.  Merrill  (124  Mass.  634),  20. 

v.  Perkins  (5  Mass.  233),  71. 

,  Richards  v.  (6  Barn.  &  C.  437), 

371«. 
,  Welrlin  o.  (4  Houst.  Del.  236),  391, 

400. 
,  Westmoreland  v.   (76  Ala.  452), 

200a. 

».  Wormser  (94  N.  Y.  431),  508. 

Port  Tobacco,  Stoddert  v.  (2  Gill  &  J. 

Md.  227),  367. 
Portland  Nat.  B'k,  Nevada  Bank  v.  (59 

Fed.  Rep.  341),  181,  370c. 
Positive  Ass.  Co.,  Eley  v.  (1  Exch.  Div. 

88),281a. 
Postlethwait  p.  Freaze  (31  Pa.  St.  472), 

226. 
Potter  v.  Arnold  (15  R.  I.  350),  230. 

v.  Brown  (36  Mich.  274),  161c. 

,  Chapin  v.  (1  Hilton.  N.  Y.  366), 

337. 

v.  Duffleld  (L.  R.  18  Eq.  4),  878. 

,  Ithel  o.  (1  P.  Wms.  770,  note),  855. 

v.  Stevens  (40  Mo.  229),  65. 

,  Wetherbee  v.  (99  Mass.  864),  117, 

122,  150,  261o. 
Potts,  Cole  v.  (10  N:  J.  Eq.  67),  464, 

476. 


Pouch,  Jones  v.  (41  O.  St.  146),  278. 
Pouder,  Maynard  v.  (75  Ga.  664),  198. 
Poulter  v.  Killingbeck  (1  Bos.  &  P.  397), 

244. 
Poultney  v.  Holmes  (1  Stra.  405),  45, 

230. 

v.  Ross  (1  Dall.  Pa.  238),  198. 

Poundstone,  Kadcliffp.  (23  W.  Va.  724), 

197. 
Powder  River  Live  Stock  Co  r.  Lamb 

(38  Neb.  339),  279,  3l6n. 
Powell,  Carroll  v.  (48  Ala.  298),  264, 

376,  467. 

,  Crane  v.  (139  N.  Y.  379),  608. 

v.  Higley  (90  Ala.  103)  119. 

c.  Jessopp  (18  C.  B.  336),  258. 

v.  Lovegrove  (8  De  G.  M.  &  G.  357), 

376. 
v .  Monson  Mfg.  Co.  (3  Mason,  C. 

C.  347),  85,  93. 
,  Moore  p.  (25  S.  W.  Rep.  Tex. 

472),  365. 

v.  Rich  (41  111.  466),  246. 

Power  v.  Rankin  (114  III.  52),  204. 
Powers,  Anderson   v.    (59   Tex    213), 

229 

v.  Clarkson  (17  Kans.  218),  256. 

v.  Fowler  (4  El.  &  B.  511),  399, 

404. 

,  Harris  v.  (57  Ala.  139),  255a. 

Powlet,    Parteriche    v.   (2    Atk.   383), 

411. 
Poyas,  Askew  v.  (2  Desaus.  S.  C.  Ch. 

145),  610u. 
Prante  v.  Schutte  (18  Brad.  111.  App. 

Ct.  62),  141. 
Prather  r.  Vineyard  (4  Gilra.  111.  40), 

187. 
Pratt,  Barnett  v.  (37  Neb.  349),  187. 

v.  Bates  (40  Mich.  37),  188. 

,  Bennett  v.  (4  Denio,  N.  Y.  276), 

405. 
v.  Bennington  Bank  (10  Vt.  293), 

65. 
,  Benton  v.  (2  Wend.  N.  Y.  385), 

136a,  181. 
v.  Humphrey  (22  Conn.  317),  186, 

188,  190. 

,  Leavitt  p.  (63  Me.  147),  267. 

v.  Miller  (109  Mo.  79),  805 

v.  Richards  Jewelry  Co.  (69  Pa.  St. 

63),  66. 

,  Taylor  P.  (3  Wise.  674),  891. 

,  Trice  v.  (1  Dev.  &  B.  N.  C.  Eq. 

626),  265. 

Pray  v.  Mitchell  (60  Me.  430),  298. 
Preble  v.  Baldwin  (6  Cush.  Mass  649), 

117,  188,269. 
Prentice,  Galvin  v.  (45  N.  Y.  162),  123, 

126. 
p.  Wilkinson  (5  Abb.  N.  Y.  Pr.  s  8. 

49),  166. 
Presbyterian  Church.    See  Amsterdam. 


XC1V 


TABLE   OF  CASES. 


Prescott,  Liverpool  Wharf  v.  (4  Allen, 

Mass.  22)  ,75. 

Pressey,  Shepherd  v.  (32  N.  H.  49),  3186. 
Pressnell  v.  Lundin  (44  Minn.  651),  118. 
Preston,  Newton  v.  (Free.  Ch.  103),  93. 

,  Norton  v.  (15  Me.  14),  451. 

,  Taylor  v.  (79  Pa.  St.  436),  1866. 

v.  Young  (46  Mich.  103),  214a. 

Preva,  Sheldon  v.  (57  Vt.  263),  452,  474. 
Price  v  Bell  (91  Ala.  180)  465. 

v.  Brown  (4  S.  C.  144),  97. 

v.  Chicago  M.  &  S.  P.  B.  R.  (40 

Mo.  App.   189),  197. 

o.  Combs  (7  Halst.  N.  J.  188),  178. 

v.  Durin  (56  Barb.  N.  Y.  647).  353 

,  Jones  National  Bank  v.  (37  Neb. 

291),  269. 
c.  Lea  (1  Barn.  &  C.  156),  335. 

v.  Leyburn  (Gow,  109),  116,  117, 

233. 

,  Price  v.  (17  Fla.  605),  461. 

v.  Richardson  (15Mees.  &  W.  539), 

400. 

,  Smith  v.  (39  111.  28),  236. 

,  Spies  v.  (91  Ala.  166),  465. 

v.  Weaver  (13  Gray,  Mass.  272), 

505,  509. 

Pridgen,  Cook  v.  (45  Ga.  331),  31. 
Priest,  Howard  v.  (5  Met.  Mass.  582), 

259 

Prime  v.  Koehler  (77  N.  Y.  91),  204. 
Prince,  Wells  c.  (15  Gray,  Mass.  562), 

184. 
Prindle,  Anderson  v.  (23  Wend.  N.  Y. 

019),  38. 
Pringle  v.  Sturgeon  (Litt.  Ky.  Sel.  Cas. 

112),  72. 

Pritchard  v.  Brown  (4N.  H.  397),  93. 
Pritchett,  Smith  v.  (98  Ala.  649)  511. 
Probasco,  Ayres  v.  (14  Kans.*  175),  360. 

v.  Johnson  (2  Disney,  Ohio,  96),  64. 

Proctor  v.  Jones  (2  Carr.  &  P.  532),  325. 

,  White  v.  (4  Taunt.  209),  369. 

Propert  v.  Parker  (1  Russ.  &  M.  625), 

357. 
Prosser  n.  Allen  (Gow,  117),  199. 

,  Lequeer  v.  (1  Hill,  N.  Y.  256),  406. 

Prothero,  Evans  v.  (I  De  G.  M.  &  G. 

572),  346,  354. 

Prout  v.  Webb.  (87  Ala.593),204,276o. 
Provident  Ins.  Co.,  Perry  v.  (99  Mass. 

162),  36. 
Pryme,  Personette  v.  (34  N.  J.  Eq  26), 

259. 
Pryor,  Allen  v.    (3  A.  K.  Marsh.  Ky. 

305),  166. 
Packet,  Wright  v.  (22  Grat.  Va.  370), 

452,  493. 

Puckett  v.  Bates  (4  Ala.  390),  197. 
Pugh,  Curtis   v.  (10  Q.  B.  Ill),  816*, 

326,  333. 
v.  Good  (3  Watts  &  S.  Pa.    66), 

226,  453,  467,  471,  476. 


Pugsley  v.  Aiken  (11  N.  Y.  494),  35. 
Pulbrooke  r.  Lawes  (1  Q.  B.  Div.  284), 

117a,  119. 

Pulse  v.  Miller  (81  Ind.  190),  385. 
Pulsifer   v.   Waterman    (73   Me.   233), 

449. 
Pulver,  Van  Slyck  v.  (Hill  &  D.  N.  Y. 

47),  204. 

Pulz,  Phlugar  v.  (43  N.  J.Eq.  440),  463. 
Pumphry  r.  Brown  (5  W.  Va.  107),  85. 
Purcell,  Bridges  v.  (1  Dev.  &  B.  N.  C. 

Law,  492),  28. 
v.  Daly  (19  Abb.  N.  C.  N.  Y.  301), 

24. 
v.  Miner  (4  Wall.  U.  S.  513),  271, 

483,  493. 
Purmort,  McCrea  v.  (16  Wend.  N.  Y. 

460),  365. 
Pursell,  Lavery   r.   (L.  R.    39  Ch.  D. 

508),  234. 
Purvis,  Peacock  v.  (2  Brod  &  B.  362), 

506. 
Puterbaugh,   Ptiterbaugh  v.   (131  Ind. 

288),  467. 

Putnam  v.  Dungan  (89  Cal.  231),  365. 
,  Metcalf  v.  (9  Allen,  Mass.  100), 

270. 
Putney  v.  Day  (6  N.  H.  430),  245,  256. 

v.  Farnham  (27  Wise.  187),  1666. 

Pye,  Reeves  v.  (1  Cranch,  C.  C.  219), 

354a,  460. 

Pyke  v.  Williams  (2  Vern.  455),  471. 
Pym  v.  Blackburn  (3  Ves.  Jr.  34),  52. 
Pyne,  Mavor  v.  (3  Bing.  285),  285. 


Q. 

Quackenbush  v.  Ehle  (5  Barb.  N.   Y. 

469),  263,  275. 

Quarterman,  Cody  v.  (12  Ga.  386),  32. 
Quilter,  M'Kinney  v.  (4  McCord,  S.  C. 

409),  190. 
Quinn  v.  Champagne   (38  Minn.  322), 

385. 
v.  Hanford  (1  Hill,  N.  Y.  82),  174, 

187,  504. 
Quintard  v.  Bacon  (99  Mass.  185),  816i, 

3276. 
v.  D' Wolf  (34  Barb.  N.  Y.  97),  193. 


R. 

Rabaud,  D'Wolf  v.  (1  Pet.  U.-S.  476), 

175,  191,  403,  407. 
v.  D'Wolf   (1  Paine,  C.  C.  580), 

191. 
Rabbermann  v.  Wiskamp  (54  111.  179), 

1666. 

Rabe,  Word  v.  (96  N.  Y.  414),  96. 
Raborg  v.  Peyton  (2  Wheat.  U.  S.  385), 

172. 


TABLE   OF   CASES. 


XCV 


Radcliff,  Abeel  v.  (13  Johns.  N.  Y.  297), 

371,  385. 
r.  Poundstone  (23  W.  Va.  724), 

197. 
Kadcliffe,   McCaffll   v.  (3  Rob.   N.   Y. 

445),  195. 

Radford,  Newell  «;.  (13  Vt.24),  76,  451. 
Raffensberger  v.  Cullison  (28   Pa.   St. 

42ti),  435. 
Rafferty  v.  Longee  (63  N.  H.  64),  3466, 

355. 
Ragan  v.  Campbell  (2  Mackey,  D.  of 

C.  28),  96a. 
Ragland  P.  Wynn  (1  Sel.  Cas.  Ala.  270), 

212. 
Ragsdale,  Bellamy  v.  (14  B.  Mon.  Ky. 

364),  119. 
,  Vicksburg  R.  R.  Co.  v.  (54  Miss. 

200),  457a. 
Raikes  ».  Todd  (8  Ad.  &  E.  846),  338, 

399,  405. 
Railroad  Co.,  Meetze  v.  (23  S.  C.  2),  28, 

487. 
v.  Staub  (7  B.  J.  Lea,  Tenn.  397), 

276. 
,  Steemod's  Adm.  v.  (27  W.  Va.  1), 

117a. 

,  Walker  P.  (26  S.  C.  80),  276a. 

Railsback  v.  Walks  (81  Ind.  409),  477. 
Railway  Co.  v.  Whitley  (54  Ark.  199), 

276. 

Rainbolttf.  East  (66 Ind.  538),  140, 2156. 
Rainer  v.  Huddleston  (4  Heisk.  Tenn. 

223),  119,  490. 

Rake  v.  Pope  (7  Ala.  161),  289. 
Ramsay,  Allshouse  v.  (6   Wliart.  Pa. 

331),  193. 

,  Faringer  r.  (2  Md.  365),  91,  93. 

R.  and  D.  R.  R.  o.  1).  and  N.  R.  R.  ( 104 

N.  C.  658),  26. 
Rand  v.  Mather  (11   Cush.   Mass.   1), 

147,  149. 

Randal,  Green  v.  (51  Vt.  67),  269. 
Randall  v.  Constans  (33  Minn.  329),  94. 
v.  Howard  (2   Black,  U.  S.  585), 

509. 

,  Hunter  v.  (62  Me.  423),  1846,  508. 

v.  Kelsey  (46  Vt.  157),  188. 

v.  Morgan  (12  Ves.  67),  219,  223, 

224. 

v.  Rich  (11  Mass.  494),  63. 

v.  Silverthorn  (4  Pa.  St.  173),  81. 

t-.  Turner  (17  Ohio  St.  262),  279. 

,  Watson  v.  (20  Wend.  N.  Y.  201), 

189,  193. 
Randle  v.  Harris  (6  Yerg.  Tenn.  608), 

206. 
Randolph  v.  Frick  (50  Mo.  App.  275), 

411. 

Raney,  Stark  v.  (18  Cal.  622),  159. 
Rankin,  Power  v.  (114  III.  62),  204. 
v.  Simpson  (19  Pa.  St.  471),  485, 

493. 


Rann  v.  Hughes    (7  T.    R.  350,  note), 

189,  190,  605a. 
Ransom,  Barry  v.  (12  N.  Y.  462),  161a, 

161c. 
Rapley  v.  Klugh  (18  S.  E.  Rep.  S.  C. 

680),  467. 
Rappleye  v.  Adee  (65  Barb.  N.  Y.  589), 

325. 
,  Wallace  v.  (103  111.  229),  230,  454, 

458. 
Raritan  Water-  Power  Co.,  Vechte  v. 

(21  N.  J.  Eq.  475),  27a. 
Rasch  v.  Bissell  (52  Mich.  455),  308, 

321e. 
Kathbun  v.  Rathbun   (6   Barb.  N.   Y. 

98),  453,  454. 
Ratliff  v.  Trout   (6  J.  J.  Marsh.   Ky. 

605),  391. 
Raub  v.  Smith   (61  Mich.  543),  261d, 

261.9- 
Raubitscliek  v.  Blank  (80  N.  Y.  478), 

8460. 
Raughley,  Pleasonton   r.    (3  Del.  Ch. 

124).  501. 

Rawdon  v.  Dodge  (40  Mich.  697),  229. 
Rawlings,  Brown  v.  (72  Ind.  305),  135. 

,  Rice  v.  (Meigs,  Tenn.  496),  370. 

,  Roughton  v.  (88  Ga.  819),  96. 

Rawlins   r.  Shropshire   (45  Ga.    182), 

454,  461. 

n  Turner  (1  Ld.  Raym.  736),  33. 

Rawson  v.  Springsteen  (2  Thomp.  &  C. 

N.  Y.  416),  199a. 
Ray   Canal  Co.  v.  (101  U.  S.  522),  436. 

Commonwealth  v.  (3  Gray,  Mass. 

447),  356. 

Marr  v.  (50  111.  App.  Ct.  415),  39. 

Wilson  v.  (13  Ind.  1 ),  289,  446. 

Wise  v.  (3  Iowa,  430),  357. 

v.  Young  (13  Tex.  550),  124. 

Raymond,  Hill  v.  (3  Allen,  Mass.  540), 

197. 
Rayner,  Jackson  v.  (12  Johns.  N.  Y. 

291),  170,  187. 
v.  Linthorne    (Ryan   &  M.   325), 

361,  367. 

Raynor  v.  Drew  (72  Cal.  307),  35, 278a. 
v  Timerson  (61  Barb.  N.  Y.  617), 

75. 

».  Wilson  (6  Hill,  N.  Y.  469),  60. 

Read,  Allis  v.  (45  N.  Y.  142),  122. 
,  Donellan  v.  (3  Barn.  &  Ad.  899), 

20,  48,  60,  287,  289. 

,  Gill  v.  (55  Mo.  App.  246),  197. 

v.  Ladd   (Edm.   N.  Y.  Sel.   Cns. 

100),  197. 

,  Mellon  v.  (114  Pa.  St.  647),  70. 

,  Mellon  v.  (123  Pa.  St.  1),  230a. 

v.  Nash  (1  Wils.  306),  157,  211. 

Reade  v.  Lamb  (6  Exch.  130),  136,  611, 

618. 
v.  Livingston  (3  Johns.  N.  Y.  Ch. 

481),  223. 


XCV1 


TABLE   OF   CASES. 


Reader  v.  Kingliam  (13  C.  B.  N.  s.  344), 

1616,  176,  188. 
,  McKinney  r.  (7  Watts,  Pa.  123), 

46,  55,  57. 
Reading,  Johnson  v.  (36  Mo.  App.  306), 

46,  291a,  485. 

,  Nally  o.  (107  Mo.  350),  230. 

,  Peebles  v.  (8  Serg.  &  R.  Pa.  484), 

81. 
Recknagle  v.  Schmaltz  (72  Iowa,  63), 

477. 
Redding  v.  Wilkes  (3  Bro.  C.  C.  400), 

459,  460,  507. 
Redhead  v.  Cator  (1  Stark.  12),  158, 

405. 
Redington,  Carleton  v.  (21  N.  H.  291), 

75. 

Redpath  v.  Roberts  (3  Esp.  225),  57. 
Reece  v.  Roush  (2  Montana,  586),  Ap- 
pendix, p.  610. 
Reech  v.  Kennegal  (1   Ves.  Sr.  123), 

442. 
Reed  v.  Copeland  (50  Conn.  472),  296a. 

P.  Evans  (17  Ohio,  128),  391. 

v.  Farr  (35  N.  Y.  113),  17. 

v.  Holcomb  (31  Conn.  360),  161c, 

197. 

v.  Howard  (71  Tex.  204),  80. 

,  Lyon  v.  (13  Mees.  &  W.  285),  43, 

48,  50,  53. 
v.  McConnell  (62  Hun,  N.  Y.  153), 

508. 

r.  Reed  (12  Pa.  St.  117),  467,  471. 

,  Spadone   v.   (7  Bush,   Ky.   455), 

1666. 
Reeder  v.  Sayre  (70  N.  Y.  180),  38. 

,  Trayer  v.  (45  Iowa,  272),  508. 

Reeding,  Hirborn  v.  (3  Mont.  15),  2619. 
Rees  v.  Jutte  (153  Pa.  St.  56),  200a. 
Reese,  Byasse  v.  (4  Met.  Ky.  372),  245, 

255i,  325. 

v.  Wallace  (113  111.  589),  96. 

Reeve  p.  Bird  (1  Cromp.  M.  &  R.  31), 

54,57. 
,  Harman  ».  (18  C.  B.   587),  313, 

3346. 

r.  Strawn  (14  111.  94),  90. 

Reeves  v.  Pye  (1  Crunch,  C.  C.  219), 

354a,  460. 
.  Vandekar  v.  (40  Hun,  N.  Y.  430), 

56. 
Reid  v.  Kenworthy  (25  Kans.  *  701), 

384. 
Reilley,    Penninger   v.    (44  Mo.   App. 

255),  508. 
Reilly,  Montgomery  v.  (1  Bligh,  364), 

220. 

Reinhart  v.  Gregg  (8  Wash.  191),  3186. 
Reinheimer  v.  Carter  (31  Ohio  St.  £79), 

289. 

Reiter,  Kopp  v.  (146  111.  447).  3546. 
Rerabert,  Griffin  p.  (2  S.  C.  410),  345a, 

373. 


Remerschnider,  Dvgert   r.   (32  N.  Y. 

629),  216o. 
Remick  v.  Sandford  (120  Mass.  309), 

3166,  316e,  316A,  330. 
Remington  v.  Linthicum  (14  Pet.  U.  S. 

84),  78,  354. 

v.  Palmer  (62  N.  Y.  31),  117,  1176. 

Renkert,  Murphy  v.  (12  Heisk.  Tenn. 

397),  197. 
Rensselaer  R.  R.,  Barkley  v.  (71  N.  Y. 

205),  327. 
,  Talmadge  v.  (13  Barb.  N.  Y.  493), 

276a,  289. 

Rentch  >;.  Long  (27  Md.  188),  302. 
Rentoul,  White  v.  (108  N.  Y.  222),214a. 
Renz  v.  Stoll  (94  Mich.  377),  108. 
Rerick  v.  Kern  (14  Serg.  &  R.  Pa.  267), 

31. 
Resseter  v.  Waterman  (37  N.  E.  Rep. 

111.  875),  188. 
Reuss  v.  Picksley  (L.  R.  1  Exch.  342), 

345a,  365. 

Rex  v.  Dunston  (Ry.  &  M.  112),  517. 
v.  Horndon-on-the-Hill  (4  Maule  & 

S.  565),  25. 

v.  Longnor  (4  Barn.  &  Ad.  647),  11. 

v.  St.  Michaels  (2  Doug.  630),  65. 

v.  Standon  (2  Maule  &  S.  461),  25. 

Reyman  v.  Mosher  (71  Ind.  596),  117. 
Reynolds  P.  Carpenter  (3  Chand.  Wise. 

31),  391. 
,  Devinney  v.  (1  Watts  &  S.  Pa. 

332),  13. 
v.  Dunkirk  R.  R.  (17  Barb.  N.  Y. 

613),  366. 

,  Gordon  ».  (114  111.  118),  508. 

,  Hackett  v.  (4  R.  I.  512),  64. 

v.  Hewett  (27  Pa.  St.  176),  76,  482. 

,  Jenkins  v.  (3  Brod.  &  B.  14),  S88, 

389,  396. 

v.  Johnston  (13  Tex.  214),  467. 

,  Jones  v.  (120  N.  Y.  213),  298. 

v.  Lawton  (62  Hun,  N.Y.  596),  1666. 

v.  Morris  (17  Ohio  St.  510),  85. 

p.  Reynolds  (45  Mo.  622),  471. 

v.  Simpson  (74  Ga.  454),  197,  199. 

-  v.  Snmner  (126  111.  58),  84. 

,  Tate  v.  (8  Watts  &  S.  Pa.  91),  46. 

p.  Waring  (Younge,  346),  497. 

-,  Wheeler  P.  (66  N.  Y.  227),  448. 
Rhiel,  Sharp  r.  (55  Mo.  97),  291. 
Rhine  v.  Robinson  (27  Pa  St.  30),  74. 
Rhoades  P.   Castner  (12   Allen,   Mass. 

130),  346. 
Rhode,  Jellett  v.  (43  Minn.  166)  .272. 
Rhodes  v.  Frick  (6  Watts,  Pa.  15),  74, 

467. 

,  Larkins  r.(5 Port.  Ala.  195),  85, 93. 

p.  Leeds  (3  Stew.  &  P.  Ala.  212), 

195. 
r.  Rhodes  (3  Sandf .  N.  Y.  Ch.  279), 

276,  463,  494,  519. 
p.  Storr  (7  Ala.  346),  122,  1226. 


TABLE   OF  CASES. 


XCV11 


Rhodins,  Welz  v.  (87  Ind.  1),  277. 
Rice  v.  Barry  (2  Cranch,  C.  C.  447),  164. 
-  v.  Carter  (11  Ired.  N.  C.  Law,  298), 


-  ,  Dobyns  v.  (22  Mo.  App.  448),  1666. 

-  ,  Exchange  Bank  v.  (107  Mass.  37), 

166a,  1666. 

-  ,  James  v.  (Kay,  Ch.  231),  499. 

-  v.  Manley  (2  Hun,  N.  Y.  492),  135a. 

-  v.  Peet  (15  Johns.  N.  Y.  503),  134, 

152. 

-  v.  Rawlings   (Meigs,  Tenn.  496), 

370. 

-  v.  Roberts  (24  Wise.  461),  231,269. 
Rich,  Duinneen  v.  (22  Wise.  550),  28. 

-  ,  Harrington   v.  (6  Vt.  666),    190, 

193,196.212. 

-  ,  Milk  v.  (15  Hun,  N.  Y.  178),  165. 

-  ,  Milk  v.  (80  N.  Y.  269),  165. 

-  ,  Randall  v.  (11  Mass.  494),  53. 

-  ,  Powell  v.  (41  111.  466),  246. 
Richard,  Allen  v.  (83  Mo.  55),  90,  263«, 

511. 
Richards  v.  Allen  (17  Me.  296),  119,  122. 

-  v.  Burroughs  (62  Mich.  117),  236. 

-  v.  Grinnell  (63  Iowa,  44),  259,  '262. 

-  ,  Holler  v.  (102  N.  C.  545),  508. 

-  w.  Porter  (6  Barn.  &  C.  437),  37  la. 

-  v.  Richards  (9  Gray,  Mass.  313), 

229,  505,  509. 

-  v.  Syms  (Barn.  Ch.  90),  65. 

-  ,  Walker  v.  (39  N.  H.  259),  197,  505. 

-  ,  Walker  v.  (41  N.  H.  388),  198. 
Richards  Jewelry  Co.,  Pratt  v.  (69  Pa. 

St.  53),  55. 
Richardson,  Bradley  r.  (23  Vt.  720),  213. 

-  .Cross  P.  (30  Vt.  641),  204,  212. 

-  ,  Gifford  v.  (1  Ad.  &  E.  52),  39. 

-  ,  Gurhn  v.  (128  111.  178),  96. 

-  ,  Hays  17.  (1  Gill  &  J.  Md.  366),  29. 

-  v.  Johnsen  (41  Wise.  100),  3816, 

441a. 

-  ,  Langdon  v.  (58  Iowa,  610),  197. 

-  ,  Packard   v.  (17  Mass.  121),  360, 

391. 

-  v.  Pierce  (7  R.  I.  330),  277. 

-  ,  Price  t7.  (15  Mees.  &  W.  539),  400. 

-  ,  Richardson  v.  (45  111.  App.   Ct. 

663),  459. 

-  ,  Richardson  v.  (148  111.  663),  459. 

-  v.  Robbins  (124  Mass.  105),  204. 

-  ».  Robbins  (129  Mass.  107),  2146. 

-  ,  Sinclair  v.  (12  Vt.  33),  199. 

-  ,  Walker  v.  (2  Mees.  &  W.  882),  44, 

56,66 

Richardson  Drug  Co.,  Fairbanks  17.  (42 
Mo.   App.  262),  309a. 

-  ,  Pike  Electric  Co.  17.  (42  Mo.  App. 

272),  309a. 
Richey,  Freed  v.  (115  Pa.  St.  361),  117. 

-  ,  Harris,  v.  (56  Pa.  St.  395),  467. 
Richie,  Walrath  v.  (5  Laos.  N.  Y.  362), 

342a. 


Richman  v.  Baldwin  (1  Zab.  N.  J.  395), 

71. 
Richmond,  Bobo  v.  (25  Ohio  St.  115), 

75. 
-  ,  Donovan  v.  (61  Mich.  467),  279, 


-  ,  Giraud  17.  (2  C.  B  835),  283. 
Richmond  Institution,  Lauer  w.  (8  Utah, 

305),  316#,  508. 

-  ,  Luzader  v.  (128  Ind.  344),  354a. 

-  Mfg.  Co.,  Hodges  v.  (9  R.  I.  482), 

278. 

Richter  v.  Irwin  (28  Ind.  26),  269. 
Rickards  v.  Cunningham  (10  Neb.  417), 

135. 
Ricker,  Jewell  v.  (68  Me.  377).  117. 

-  v.  Kelly  (1  Greenl.  Me.  117),  29. 
Rickert,  People  v.  (8  Cow.  N.  Y.  226), 

38,  39. 
Rickett  r.  Madeira  (1  Rawle,  Pa.  325), 

64. 
Riddle  v.  Backus  (38  Iowa,  81),  275. 

-  y.  Brown  (20  Ala.  412),  28. 

-  v.  Emerson  (1  Vern.  108),  82. 
Rider,  Maul  v.  (51  Pa.  St.  377),  73. 
Ridgely  v.  Stillwell  (28  Mo.  400),  38. 
Ridgway  v.  Ingram  (50  Ind.  145),  3466, 

348. 

-  t7.  Wharton   (6  H.  L.  Cas.  238), 

3466. 

Ridley  v.  McNairy  (2  Humph.  Tenn. 
174),  448,  487. 

-  ,  Nichol  v.  (5  Yerg.  Tenn.  63),  346. 

-  v.  Ridley  (34  Beav.  478),  275. 
Ridout,  Doe  v.  (5  Taunt.  619),  45. 
Ries,  Buckner  v.(34  Mo.  357),  294a. 
Rifener  v.  Bowman   (53  Pa.  St.  313), 

59. 
Rigby  v.  Norwood   (34  Ala.  129),  391, 

406,  508,  516o,  519. 
Rigden,  Coon  ».  (4  Col.  275),  357. 
Rigge  v.  Bell  (6  T.  R.  471),  39. 
Riggs  v.  Magruder  (2  Cranch,  C.   C. 

143),  297. 

Rigney  v.  Lovejoy  (13  N.  H.  247),  65. 
Riley  v.  Farnsworth  (116  Mass.  223), 

384. 

-  ,  McMullen  v.  (6  Gray,  Mass.  500), 

142. 

-  r.  Riley  (25  Conn.  154),  2156. 

-  r.  Williams  (123  Mass.  506),  385. 
Rindskopf  v.  De  Ruyter  (39  Mich.  1), 

3276. 

Rineer  r.  Collins  (156  Pa.  St.  343),  384. 
Ringer  v.  Holtzclaw  (112  Mo.  519),  384. 
Ringgold  v.  Newkirk  (3  Pike,  Ark.  97), 

391. 
Ringland,  Jackman  v.  (4  Watts  &  S. 

Pa.  149),  84,  90,  94,  96. 
Ripley,  Hight  v.  (19  Me.  139),  308. 
Risdon,  Lee  v.  (7  Taunt.  191),  236. 
Kishton  v.  Whatmore  (8  Ch.  Div.  467), 

3466,  351. 


XCV111 


TABLE  OF  CASES. 


Hitch  v.  Thornton  (65  Ala.  309),  508. 
Rittle,  Ireland  v.  (I  Atk.  541),  08. 
Ritz,  Freeland  v.  (154  Mass.  257),  3466. 
Rives  v.  Lawrence  (41  Ga.  283),  90. 
Riviere,  Muller  v.  (59  Tex.  640),  203, 

204. 

Robart,  Penton  v.  (2  East,  88),  236. 
Robb,  Taliaferro  v.  (2  Call,  Va.  258), 

190. 
Robbins,  Byam  v.  (6  Allen,  Mass.  63), 

75. 
,  Richardson  v.   (124  Mass.   105), 

204. 
,  Richardson   v.   (129  Mass.  107), 

2146. 

Robert,  Wiley  v.  (27  Mo.  388),  348. 
Roberts,  Casson  v.  (31  Beav.  613),  122. 

v.  Croft  (2  De  G.  &  J.  1),  62a. 

-— ,  Curnutt  v.  (11  B.  Mon.  Ky.  42), 

121. 

,  Eddy  v.  (17  111.  505),  193. 

,  Evans  v.  (5  Barn.  &  C.  829),  228, 

238,  240. 

,  Hunt  v.  (40  Me.  187),  445a. 

,  Kyle  v.  (6  Leigh,  Va.  495),  367. 

,  Meyer  v.  (46  Ark.  80),  282. 

,  Miller  v.  (18  Tex.  16),  268,  289. 

,  Redpath  v.  (3  Esp.  225),  57. 

v.  Rockbottom  Co.  (7  Met.  Mass. 

46),  279. 

,  Rice  r.  (24  Wise.  461),  231,  269. 

,  Strimpfler  v.  (18  Pa.  St.  283),  91. 

r.  Summit    Park    Co.   (72    Hun, 

N.  Y.  458),  278a. 
v.  Tucker   (3   Exch.  632),  282a. 

371a. 
v.  Tunnell  (3  T.  B.  Mon.  Ky.  247), 

124,  272. 
Robertson,  Briar  v.  (19  Mo.  App.  66), 

291. 

,  Davis  r.  (1  Mill,  S.  C.  71),  346a. 

,  Hatcher  v.  (4  Strobh.  S.  C.  Eq. 

179),  215. 

v.  Hunter  (29  S.  C.  9),  197. 

v.  Robertson   (9  Watts,  Pa.  32), 

94. 
v.  Vaughan  (5  Sandf.  N.  Y.  1),  302, 

306. 
Robinson  v.  Ainge  (L.  R.  4  C.  P.  429), 

258. 
,  Ashford  v.  (8  Ired.  N.  C.  Law, 

114),  164,  391. 
,  Cusack    v.    (1   Best  &   S.  399), 

316a,  316c,  3186,  320,  321a, 

321c,  333,  338. 
,  Daniel   v.    (66    Mich.   296),   183, 

1846. 

v.  Deering  (56  Me.  357),  40. 

,  De  Moss  v.  (46  Mich.  62),  116. 

,  Farmer  v.  (2   Camp.  337,  note), 

353 

v.  Garth  (6  Ala.  204),  78, 368,  369. 

,  Jones  i'.  (1  Exch.  456),  166a. 


Robinson   v.  Lane  (14  Smedes  &   M 
Miss.  161),  193. 

-  ,  North  v.  (I  Duv.  Ky.  71),  188. 

-  v.  Page  (3  Russ.  119),  433. 

-  ,  Rhine  v.  (27  Pa.  St.  30),  74. 

-  ,  Stowell  v.  (3  Bing.  N.  R.   937), 

427. 

-  v.  Thrailkill  (110  Ind.  117),  31a. 

-  ,  Williams  v.  (73   Me.  186),  3466, 

391. 
Robson  v.  Harwell   (6   Ga.  589),   113, 

147,  151. 

Roby  v.  Colehorn  (135  111.  300),  96. 
Roche  v.  Chaplin   (1  Bail.  S.  C.  Law, 

419),  156. 

-  ,  Greenlees  v.  (48  Kans.  503),  471. 
Rochester  v.  Yesler  (6  Wash.  Nev.  116), 

483. 
Rock,  Thayer  v.  (13  Wend.  N.  Y.  53), 

141,  254. 
Rockbottom   Co.,  Roberts   v.    (7   Met. 

Mass.  46),  279. 
Rockford    R.   R.  v.  Shunick    (65  111. 

223),  10. 
Rockwell,  Adams  v.  (16  Wend.  N.  Y. 

285),  487. 

-  v.  Hobby  (2  Sandf.  N.  Y.  Ch.  9), 

64. 

Rodgers  v.  Jones  (129  Mass.  420),  317. 
Rodwell  v.  Phillips  (9  Mees.  &  W.  503), 

251. 
Roe,  Caylor  v.  (99  Ind.  1),  140,  439 

-  r.  York  (6  East,  86),  43,  44,  49. 
Roebuck,  dimming  v.  (Holt,  N.  P.  172), 

351         * 

-  ,  Hoby  v.  (7  Taunt.  157),  20,  233. 
Roehl  v.  Haumesser  (114  Ind.  311),  266, 

346a,  370a. 

Rogers  v.  Atkinson  (1  Kelly,  Ga.  12), 
411. 

-  v.  Bracken  (15  Tex.  564),  13. 

v.  Brightman  (10  Wise.  55),  27$a. 


-  ,  Chaplin  v.  (1  East.  192),  3186,  321, 

322. 

-  v.  Collier  (2  Bail.  S.  C.  Law.  581), 

209. 

-  ,  Durant  v.  (10  Tenn.  522),  94. 

-  v.  Empkie  Hardware  Co.  (24  Neb. 

653),  204. 

-  ,  Farmer  v.  (2  Wils.  26),  7,  42. 
—  —  v.  Frost  (14  Tex.  267),  13. 

-  ,  Glenn  v.  (3  Md.  312),  128. 

-  v.  Gould  (6  Hun,  N.  Y.  229),  327. 

-  v.  Kneeland  (10  Wend.  N.  Y.  252), 

405. 

-  v.  Murray  (3  Paige,  N.  Y.  390),  84, 

89. 

-  ,  Newby  v.  (40  Ind.  9),  363,  365. 

-  ,  Oakman  v.  (120  Mass.  214),  371n. 

-  v.  Simmons  (55  111.  76),  95. 

-  ,  Snell  v.  (70  Hun,  N.  Y.  462),  157. 

-  v.  Waters  (2  Gill  &  J.  Md.  64),  164. 

-  v.  Wheaton  (88  Tenn.  665),  38. 


TABLE   OF   CASES. 


XC1X 


Rogers,  Williams  v.  (14  Bush.  Ky.  796), 

188. 
Koget  v.  Merritt  (2  Caines,  N.  Y.  117), 

3(56. 
Rohde  v.  Thwaites  (6  Barn.  &  C.  388), 

336. 
Rolph,  Barrett  v.  (14  Mees.  &  W.  348), 

45. 
Romaine,  Byrne  v.  (2  Edw.  N.  Y.  Cl). 

445),  488. 

Roraann  v.  Bressler  (32  Neb.  240),  329. 
Ronald,  Johnson  v.  (4  Munf.  Va.  77), 

377. 
Rondeau  v.  Wyatt  (2  H.  Bl.  63),  293, 

498,  515. 
Ronney,  Andern  v.  (6  Espinasse,  254), 

187. 
Roosevelt,  Taggard  v.  (2  E.  D.  Smith, 

N.  Y.  100),  34,  38,  272. 
Root  i».  Burt  (118  Mass.  521),  117,  118. 

,  Colt  v.  ( 17  Mass.  229),  188. 

,  Henry  v.  (33  N.  Y.  526),  354a. 

,  Madciock  v.  (72  Hun,  N.  Y.  98), 

199 
,  Ontario  Bank  v.  (3  Paige,  N.  Y. 

478),  511. 
Roots,   Carrington  v.  (2   Mees.  &  W. 

248),  133,  186.188e.261. 

v.  Dormer  (4  Barn.  &  Ad.  77),  314. 

Rose  v.  Bates  (12  Mo.  30),  129. 

v.  Cunynghame    (11    Ves.   550), 

352a,  354. 

,  Godts  v.  (17  C.  B.  229),  319a,326. 

v.  Hayden  (35  Kansas,  106),  96. 

v.  O'Linn  (10  Neb.  364),  191. 

Rosenberg,  Dougherty  v.  (62  Cal.  32), 

278a. 
Ros«nberger  v.  Jones   (118  Mo.   559), 

229,  467. 
Rosenfeld,   Guggenheim    v.    (9    Baxt. 

Tenn.  553),  213. 
Rosenthal  i?.  Freeburger  (26  Md.  75), 

476. 
Rosepaugh  v.  Vredenburgh   (16  Hun, 

N.  Y.  60),  118. 
Ross,  Chapman  v.  (12  Leigh,  Va.  565), 

159. 
,  Downs  v.  (23  Wend.  N.  Y.  270), 

302. 

v.  Hogeman   (2  Edw.  N.  Y.  Ch. 

373),  85. 
,  Pengall  v.  (2  Eq.  Cas.  Abr.  46), 

462,  469,  490. 

,  Poultney  v.  (1  Dall.  Pa.  238),  198. 

,  Taylor  v.  (3  Yerg.  Tenn.  330),  391. 

,  Wills  v.  (77  Ind.  1),  197,  348,  375. 

Ross  Estate,  Sullivan  v.  (98  Mich.  570), 

454. 
Rossiter,  Britain  v.  (L.  R.  11  Q.  B.  D. 

123),.  118,291,  460a. 

v.  Miller  (5  Ch.  Div.  648),  371a,  373. 

,  Waterman  v.  (45   111.  App.  155), 

176«,  204. 


Rossman  v.  Bock  (97  Mich.  431),  199. 

Roter,  Hanson  v.  (64  Wise.  622),  242, 
303. 

Roth,  Day  v.  (18  N.  Y.  448),  98. 

v.  Goerger  (118  Mo.  656),  509. 

Rothermel,Dumiri;.(112Pa.  St.  272), 38. 

Rottnmn  v.  Fix  (25  Mo.  App.  671),  197. 

Roughton  v.  Rawlings  (88  Ga.  819),  96. 

Rounsevel,  Harris  v.  (61  N.  H.  250), 
341. 

Rouse,  Marsh  v.  (44  N.  Y.  643),  3186. 

Roush,  Reece  i;.  (2  Montana,  686),  Ap- 
pendix, p.  610. 

Rowan  v.  Lytle  (11  Wend.  N.  Y.  616), 
44,46. 

Rowe,  Besshears  v.  (46  Mo.  501),  1666. 

,  Gardner  v.  (2  Sim.  &  S.  346),  97, 

136. 

,  Phelps  v.  (75  Hun,  N.  Y.  414),  1666. 

»;.  Teed  (15  Ves.  372),  615,  518,  631. 

r.  Whittier  (21  Me.  645).  1666. 

Rowland  v.  Boozer  (10  Ala.  694),  261/. 
v.  Garmau  (1  J.  J.  Marsh.  Ky.  76), 

123. 

Rowley,  Sutton  v.  (44  Mich.  112),  122. 
Rowton  v.  Rowton  (1  Hen.  &  M.  Va. 

92),  487,  493. 

Royce  v.  Graham  (91  Ind.  420),  136. 
Ruck,  Gregson  v.  (4  Q.  B.  737),  351. 
Rucker  v.  Abell  (8  B.  Mon.  Ky.  566), 

119,  120. 

v.  Cammever  (1  Esp.  105),  351, 

370a. 
v.  Harrington  (52  Mo.  App.  481), 

411. 

v.  Stcelman  (73  Ind.  396),  266. 

Ruckle  v.  Harbour  (48  Ind.  274),  264, 

354. 

Rudisill  v.  Cross  (54  Ark.  519),  2346. 
Ruffey  v.  Henderson  (21  L.  J.  Q.  B.  49), 

24,  26. 

Rugg  v.  Minett  (11  East,  210),  335,  336. 
Ruggles  v.  Emery   (14  Sup.  Ct.  Rep. 

1083),  463. 

v.  Gatton  (60  111.  412),  198. 

Ruland,  Church  v.  (64  Pa.  St.  432),  94. 
Runde  v.  Runde  (58  111.  232),  1666. 
Rundell,  Gardner  r.  (70  Texas,  453)  80. 
Runder,  Hallen  v.  (1  Cromp.  M.  &  R. 

266),  234. 
Runk,  Field  v.  (22  N.  J.  L.  525),  327, 

336,  337. 
Runyan  v.  Merserau  (11  Johns.  N.  Y. 

534),  65. 

Ruppe  v.  Peterson  (67  Mich.  437),  156. 
Rush,  Watkins  v.  (2  Lans.  N.  Y.  234), 

119. 

Russel  v.  Russel  (1  Bro.  C.  C.  269),  62. 
Russell  v.  Babeock  (14  Me.  138),  198, 

212. 

,  Beaman  v.  (20  Vt.  205),  161c. 

v.  Berkstresser  (77  Mo.  417),  117. 

v.  Clark  (7  Crunch,  C.  C.  69),  181 


TABLE    OF   CASES. 


Russell,  Hooker  «;.  (67  Wise.  257),  156. 

v.  Hubbard  (59  111.  335),  29,  31a. 

,  Kerr  v.  (69  111.  666),  12. 

v.  Maloney  (39  Vt.  583),  75. 

v.   Moseley  (3  Brod.  &  B.  211), 

405. 

,  Plummer  v.  (2  Bibb,  Ky.  174),  13. 

v.  Slide  (12  Conn.  455),  278o. 

,  Western  v.  (3  Ves.  &  B.  187),  357. 

,  Whitton  v.  (1  Atk.  448),  94. 

v.  Wisconsin  R.  R.  Co.  (39  Minn. 

145),  310. 
Rust,  Buxton  v.  (L.  R.  7  Exch.  279), 

3466,  348,  349. 
Rutan  v.  Hinchnmn  (30  N.  J.  L.  255), 

118,  293. 

Rutenberg  v.  Main  (47  Cal.  213),  370. 
Rutherford,  M'.Kay  v.  ( 13  Jur.  21),291a. 
Rutledge  ».  Smith  (1  McCord,  S.  C.  Ch. 

119),  97,  103,  104,  109. 
Ryall  v.  Ryall  (1  Atk.  59),  85,  90,  91, 

100. 
Ryan  v.  Davis  (5  Mont.  505),  385. 

v.  Box  (25  Barb.  N.  Y.  440),  94. 

v.  Dox  (34  N.  Y.  307),  94,  96a. 

v.  Dunphy  (4  Montana,  342),  131. 

,  Dunphy  v.  (116  U.  S.  491),  118a, 

131,  261.9,  439,  511. 

v.  Tomlinson  (39  Cal.  639),  116. 

v.  U.  S.  (136  U.  S.  68),  354a. 

v.  Wilson  (56  Tex.  36),  483. 

Ryde  v.  Curtis  (8  Dowl.  &  H.  62),  400. 
Ryerss   v.   Wheeler  (25  Wend.  N.  Y. 

434),  68. 

Ryley  v.  Hicks  (1  Stra.  651),  32,  33. 
Rynd,  Maffitt  v.  (69  Pa.  St.  386),  82. 


8. 


Sabin,  Bates  ».  (64  Vt.  511),  165. 
Sabittis,  John  v.  (69  Me.  473),  75. 
Sackett  v.  Palmer  (25  Barb.  N.  Y.  179), 

391. 
Sackrider,   Brady  v.  (1   Sandf.   N.  Y. 

514),  197. 
Saddington,  Green  v.  (7  El.  &  B.  503), 

117,  117o. 
Safford  v.  Annis  (7  Greenl.  Me.  168), 

i    245,  255a. 
v.  McDonough    (120  Mass.  290), 

3186,  323. 

Sage,  Curtis  v.  (35  111.  22),  283,  289. 
v.  M'Guire  (4  Watts  &  S.  Pa.  228), 

483,  493. 

,  Stocking  v.  (1  Conn.  519),  159. 

v.  Wilcox  (6  Conn.  81),  166,  190, 

391,  395. 
,  Wooster  v.  (6  Hun,  N.  Y.  285), 

293 

Sailors  v.  Gambril  (Smith,  Ind.  82),  451. 
Sainsbury  v.  Matthews  (4  Mees.  &  W. 

343),  243. 


St.  John  v.  Benedict  (5  Day,  Conn.  468), 

29. 
,  Slaymaker  v.  (5  Watts,  Pa.  27), 

81. 

St.  Michael's,  Rex  v.  (2  Doug.  630),  65. 
St.  Paul,  Brodie  v.  (1  Ves.  Jr.  326),  347, 

451. 

Salb  v.  Campbell  (65  Wise.  405),  118. 
Sale  v.  Darragh  (2  Hilton,  N.  Y.  184), 

337, 385. 

v.  Lambert  (L.  R.  18  Eq.  1),  373. 

Salfield  v.  Sutler  County  Co.  (94  Cal. 

546),  370a. 
Salisbury,   Gorman   v.  (1  Vern.  240), 

432. 
Salmon,  Taylor  v.  (4  Mylne  &  C.  134), 

96. 
Salmon  Falls  Mfg.  Co.  v.  Goddard  (14 

How.  U.  S.  446),  350,  362,  375, 

380,  383,  384. 

Salsbury  v.  Black  (119  Pa.  St.  200),  95. 
Sammis,  Haviland  v.  (62 Conn.  44),  117. 
Sampson  v.  Burnside  (13  N.  H.  264),  28. 

v.  Swift  (11  Vt.  315),  157. 

Sams  v.  Fripp  (10  Rich.  S.  C.  Eq.  447), 

366. 

Sanborn,  Brown  v.  (21  Minn.  402),  311. 
v.  Chamberlin  (101  Mass.  409),  368, 

505,  509. 

v.  Flagler  (9  Allen,   Mass.  474), 

345a,  362,  364,  367. 
v.  Merrill  (41  Me.  467),  157. 

v.  Sanborn  (7  Gray,  Mass.  142), 

354,  357,  450. 
Sanborne,  Neelson  v.  (2  N.  H.  413),  391, 

404. 

Sandberg,  Hohn  v.  (32  Minn.  427),  193. 
Sanders  v.  Clason  (13  Minn.  379),  2-146. 

,  Creighton  v.  (89  111.  543),  38,  451. 

v.  Gillespie  (59  N.  Y.  250),  161c. 

v.  Partridge  (108  Mass.  546),  8,  42. 

Sanderson  v.  Graves  (L.  R.  10  Exch. 

234),  117a,  414. 
Sandford  v.  Norris  (4  Abb.  N.  Y.  App. 

Dec.  144),  94,  96a. 

Sands  v.  Arthur  (84  Pa.  St.  479),  126. 
o.  Thompson  (43  Ind.  18),  266,468, 

488. 
,  Watkins  v.  (4  Brad.  111.  App.  Ct. 

207),  187. 
Sanford,  Dyer  v.  (9  Met.  Mass.  395), 

25,  27a 

— -,  McClellan  v.  (26  Wise.  595),  289. 
,  Remick  v.  (120  Mass.  309),  3166, 

316*.  316A,  330. 

Sapp  v.  Faircloth  (70  Ga.  690),  1666. 
Sargent,  Blanding  v.  (33  N.  H.   230), 

277,  289. 
Sari  v.  Bourdillon  (1  C.  B.  N.  8.  188), 

373,  384. 

Sarles  v.  Sharlon  (5  Dak.  100),  278. 
Satterthwaite  ?:.  Emley  (3  Green,  N.  J. 

Ch.  489),  223. 


TABLE  OF  CASES. 


Cl 


Sattley,  Hart  v.  (2  Camp.  528),  327a. 
Saunders,  Beale  v.  (3  Bing.  N.  It.  850), 

39. 

v.  Cramer  (3  Dru.  &  W.  87),  216. 

v.  Kastenbine  (6  B.  MOD.  Ky.  17), 

278.  2rflu. 

v.  Topp  (4  Exch.  390).  3216. 

v.  Wakefield  (4  Barn.  &  Aid.  595), 

381,  388,  393,  394. 
Saunderson  r.  Jackson   (2  Bos.  &  P. 

238),  346,  352,  357. 

v.  Jackson  (3  Esp.  180),  356. 

,  Twidy  v.  (9  Ired.  N.C.  5),  150. 

Savage  v.  Carroll  (1  Ball  &  B.  265), 

456,  476,  480,  497. 

v.  Foster  (9  Mod.  35),  448,  487. 

,  Kinloch  v.  (Speers,  S.  C.  Eq.464), 

354a,  376. 

«?.  Lee  (101  Ind.  514),  76,  135,  471. 

,  Tress  v.  (4  El.  &  B.  36),  39. 

,  Wood  v.  (2  Doug.  Mich.  316),  223. 

Sawell,  Mathews  v.  (8  Taunt.  270),  56. 
Sawkins,  Jordan  v.  (1  Ves.  Jr.  402),  41 1. 
Sawtel,  Harrison  v.  (10  Johns.  N.  Y. 

242),  158,  161c. 
Sawyer  v.  Ware  (36  Ala.  675),  2936. 

,  Williams  r.  (3  Brod.  &  B  70),  47. 

Sayles,  Taylor  v.  (57  N.  H.  465),  4416. 
Say  re  v.  Fredericks  (16  N.  J.  Eq.  205), 

65. 

,  Reeder  v.  (70  N.  Y.  180),  38. 

,  Singer  Mfg.  Co.  v.  (75  Ala.  270), 

1356. 
v.  Townsend  (16  Wend.  N.  Y.  647), 

86,88. 

v.  Wilson  (86  Ala.  151),  269. 

Sayward,  Smith  v.  (5  Greenl.  Me.  604), 

16 Ic,  204. 

Scaife,  Woodruff  v.  (83  Ala.  152),  187. 
Scales,  Adams  v.  (1  Baxt.  Tenn.  337), 

367. 

Scanlan  v.  Geddes  (112  Mass.  15),  385. 
Scarff,  Allen  v.  (I  Hilton,  N.  Y.  209), 

197. 

Scarlett  v.  Stein  (40  Md.  512),  3466. 
Scarritt   v.    St.  John's   M.  E.   Church 

(7  Mo.  App.  174),  371,  385. 
Schaaber  v.  Busliong  (105  Pa.  St.  514), 

187. 

Schaefer,  Small  v.  (24  Md.  143),  214c. 
Schafer  v.  Farmers'  Bank  (59  Pa.  St. 

144),  348. 
Schaper,  Scheffermeyer  v.  (97  Ind.  70), 

267. 

Scharff  v.  Klein  (29  Mo.  App.  549),  508. 
Scheffermeyer  v.  Schaper  (97  Ind.  70), 

267. 

Schemp,  Meyers  v.  (67  111.  469),  234. 
Schenck,  McMakin  v.  (98  Ind.  264),  267. 
.Parker  v.  ("2S  Barb.  N.  Y.  38), 

308. 
Schenectady    v.   McQueen    (15    Hun, 

N.Y.  551),  1176. 


Scherpf,  Burton  v.  (1  Allen,  Mass.  133), 

24. 
Schieffelin  v.  Carpenter  (15  Wend.  N.Y. 

400),  60,  54. 
Schierman    v.    Beckett   (88    Ind.   52), 

1226. 
Schmaltz,  Recknagle  v.  (72  Iowa,  63), 

477. 

Schmid,  Nestal  v.  (29  N.  J.Eq.458),96. 
Schmidt  v.  Gatewood  (2  Rich.  S.  C.  Eq. 

162),  95,  439. 

v.  Thomas  (75  Wise.  529),  320. 

Schneider  v.  Norris  (2  Maule  &  S.  286), 

352,  355a,  356,  357,  365. 
Schofield,  Kenworthy  v.  (2  Barn.  &  C. 

945),  364,  369. 
School  City  of   Huntington,  Caldwell 

v.  (132  Ind.  92),  346. 
School  Directors,  McLean  v.  (51  Pa.  St. 

196),  491a. 
School  District,  Keyson  v.  (35  N.  H. 

477),  234. 

v.  Macloon  (4  Wise.  79),  487. 

Schoonmaker  v.  Plummer  (139  111.  612), 

619. 

Schoonover  v.  Vachon  (121  Ind.  3),  118. 
Schriver  v.  Eckemode  (94  Pa.  St.  456), 

269. 
Schroeder  v.  Loeber  (75  Md.  195),  118. 

,  Neumann  v.  (71  Tex.  81),  172. 

—  v.  Taafe  (11  Mo.  App.  267),  385. 

,  Zabel  v.  (35  Tex.  308),  289. 

Sclmlte,  Benton  v.  (31  Minn.  312),  505. 
Schultz  v.  Noble  (77  Cal.  79),  197. 

v.  Tatum  (35  Mo.  App.  136),  279. 

Schupp,  Kelley  v.  (60  Wise.  76),  200«. 
Schuyler  r.  Leggett  (2  Cowen,  N.  Y. 

660),  38,  39. 
Schwartz,  Weil  v.  (21  Mo.  App.  372), 

184a. 

Scoby  v.  Blanclmrd  (3  N.  H.  170),  93. 
Scoggin  v.  Slater  (22  Ala.  687),  233. 
Scoggins,  Wallace  v.  (17  Oregon,  476), 

467. 

Scoles,  Mather  v.  (35  Ind.  2),  263a. 
Scorell  v.  Boxall  (1  Younge  &  J.  396), 

251,  253. 
Scot,  Anderson  v.  (1  Camp.  235,  note), 

325. 
Scott,  Baker  r.  (2  Thomp.  &  C.  N.  Y. 

606),  118. 

,  Balliet  r.  (32  Wise.  174),  1666. 

v.  Bush  (26  Mich.  418),  122. 

,  Commins  v.  (L.  R.  20  Eq.   11), 

3466,  373. 
v.   Eastern   Counties    R.   R.    (12 

Mees.  &  W.  33),  308,  335,  336. 

v.  Harris  (113  111.  447),  94. 

v.  McFarland  (13  Mass.  309),  229. 

,  Macrory  v.  (5  Exch.  907),  164, 

203. 
,  Mussey   v.  (7   Gush.   Mass.   25), 

13. 


Cll 


TABLE   OF   CASES. 


Scott,  Palmer  v.  (1  Russ.  &  M.  391), 

366. 
v.  Thomas  (1  Scam.  111.  58),  177, 

204. 
,  Thomson  v.  (1  McCord,  S.  C.  Ch. 

32),  483,  493. 

v.  Turner  (15  La.  Ann.  346),  65. 

v.  White  (71  111.  287),  204. 

,  Wilkinson  v.  (17  Mass.  249),  465. 

Scotten  c.  Brown  (4  Harr.   Del.  324), 

126,  131. 
Scoville,  Alger  v.  (1  Gray,  Mass.  391), 

158,  188,  204,  206,  212. 
Scribner,  Crockett  ».  (64  Me.  447).  310. 
Scroth,  Lynch  v.  (50  111.  App.  Ct.  668), 

508. 

Scruggs,  Clanton  v.  (95  Ala.  279),  509. 
Scudder,  Ames  v.  (83  Mo.  189),  98. 

v.  Carter  (43  111.  App.  Ct.  252), 

204. 

,  Louisville   Prize    Mining    Co.  v. 

(3  Col.  152),  504. 

v.  Wade  (1  South.  N.  J.  249),  198. 

Sculthorpe,  Phipps  v.  (1  Barn.  &  Aid. 

50),  53,  56. 
Scutt,  Bennett  v.  (18  Barb.  N.  Y.  347), 

28. 

Seabright,  Thome  v.  (Salk.  24),  23. 
Seago  v.  Deane  (4  Bing.  459),  117. 
Seagood   v.  Meale   (Finch,  Prec.   Ch. 

560),  448,  467,  476. 
Seaman  v.  Ascherman  (51  Wise.  678), 

487. 

,  Drake  v.  (97  N.  Y.  230),  384. 

- —  v.  Hasbrouck  (35  Barb.  N.  Y.  151), 

1666. 
Seamens,  Swain  v.  (9  Wall.  U.  S.  254), 

425,  457a,  458,491. 
Searight  v.  Payne  (2  Tenn.  Ch.  175), 

164. 

Searle  v.  Keeves  (2  Esp.  598),  316a. 
Sears  v.  Brink  (3  Johns.   N.  Y.  210), 

191,  391. 

,  Patrick  v.  (19  Fla.  856),  385. 

v.  Smith  (3  Col.  287),  272. 

,  Sutton  v.  (10  Ind.  223),  231. 

Seat,  Beadle  v.  (15  So.  Rep.  Ala.  243), 

85. 

Seavey,  Hesseltine  v.  (16  Me.  212),  53. 
Sedam,  Shotwell  v.   (3   Ohio,  5),  77, 

230. 

Sedgwick  v.  Tucker  (90  Ind.  271),  135. 
Seeley,  Woodward  v.  (11  111.  157),  28. 

,  Yale  v.  (15  Vt.  221),  251. 

Seely,  Phelps  v.  (22  Grat.  Va.  573),  433. 
Seery,  McElroy  v.  (61  Md.  389),  372. 
Segars,  Segars  v.  (71  Me.  530),  118. 
Seger,  Case  v.  (4  Wash.  492),  261/ 
Seguine,  McPherson  v.  (3  Dev.  N.  C. 

Law,  153),  69. 

Seller  v.  Mohn  (37  W.  Va.  507),  87. 
Selby,  Nesham  v.  (L.  R.  7  Ch.  App. 

406),  371a. 


Selby  r.  Selby  (3  Meriv.  2),  355,  355a, 

362. 

Self  v.  Cordell  (45  Mo.  345),  2827*,  289. 
Selkrig  v.  Davies  (2  Dow,  P.  C.  230), 

259. 
Sellack  v.  Harris   (5  Vin.   Abr.  521), 

442. 
Sellers,  Batturs  v.  (5  Harr.  &  J.  Md. 

117),  344,  346,  369. 
Sellick  v.   Addams   (15  Johns.  N.  Y. 

197),  75. 
Senior  v.  Butt  (1  Tyrw.  283,  note),  138, 

213 

,  Higgins  v.  (8  M.  &  W.  834),  373. 

Sennett  v.  Johnson  (9  Pa.  St.  335),  13-1. 

v.  Shehan  (11  Rep.  401),  122. 

v.  Shehan  (27  Minn.  328),  122. 

Servis  v.   Nelson   (14   N.  J.  Eq.  94), 

445a. 

Seton,  Hunter  v.  (7  Ves.  265),  366. 
v.  Slade  (7  Ves.  265),  365,  366. 


Severin,  Jarboe  v.  (85  Ind.  496),  118. 
bewail  v.  Fitch   (8  Cow.  N.  Y.  215), 

302,  306,  369. 
Sewell  v.  Baxter  (2  Md.  Ch.  Dec.  447), 

91. 

,  Wilson  v.  (4  Burr.  1975),  48,  49. 

Sexton,  Howard  v.  (4  N.  Y.  157),  1356. 
Seymour    v.   Bennet   (14  Mass.   266), 

118. 
v.  Davis  (2  Sandf.  N.  Y.  239),  303, 

306,  451. 

,  Fitch  v.  (9  Met.  Mass.  462),  270. 

,  Slocum  v.  (36  N.  J.  L.  138),  256, 

257a. 
Shackelford,  Walker  v.  (49  Ark.  503), 

117,  2346. 
Shackford,  Lane  v.  (5  N.  H.  130),  76, 

122,  451,  462. 

Shaeffing,  Kiene  v.  (33  Neb.  21),  279. 
Shahan  v.  Swan  (48  O.  St.  25),  454. 
Shamblin,  Horn  v.  (57  Tex.  243),  505. 
Shamburger  v.  Kennedy  (1  Dev.  N.  C. 

1),  14. 
Shannon  v.  Bradstreet  (1   Schoales  & 

L.  72),  487a. 
,  Davey  v.  (4  Exch.  Div.  81),  277, 

281. 
Shardlow  v.  Cotterell  (L.  R.  20  Ch.  D. 

90),  348,  385. 
Sharkey  v.  McDermott  (91  Mo.  647), 

463. 

Sharlon,  Sarles  v.  (5  Dak.  100),  278. 
Sharman  v.  Brandt  (L.  R.  6  Q.  B.  720), 

367. 
Sharp  r.  Carroll  (66  Wise.  62),  342. 

,  Meehan  v.  (151  Mass.  564),  296a. 

v.  Rhiel  (55  Mo.  97),  291. 

,  Townsend  v.  (2  Overt.  Tenn  192), 

452,  454. 
,  Wolfe  v.  (10  Rich.  S.  C.  Law,  60), 

264,  265. 
,  Worden  v.  (56  111.  104),  117. 


TABLE   OF   CASES. 


CU1 


Sharpe,  Mapps  v.  (32  111.  13),  65. 
Shattuck,  Eagle   Machine  Co.   v.    (53 

Wise.  455),  165. 

v.  Gragg  (23  Pick.  Mass.  88),  77. 

Shaw,  Elwell  v.  (16  Mass.  42),  13. 

z;.   Finney   (13   Met.  Mass.  453), 

.  369. 
,  Flickinger  v.   (87  Cal.   126),  31, 

31a. 

,  Grant  v.  (16  Mass.  341),  172. 

v.  Jakeman  (4  East,  201),  223. 

,  Kerr  v.  (13  Johns.  N.  Y.  236),  231, 

391. 

v.  Shaw  (6  Vt.  69),  122. 

,  Sherburne  v.  (1  N.  H.  167),  373, 

374. 

v.  Stine  (8  Bosw.  N.  Y.  157),  183. 

v.  Walbridge  (33  O.  St.  1),  229. 

v.  Woodcock  (7  Barn.  &  C.  73), 

116. 

Shearer  v.  Shearer  (98  Mass.  107),  259. 
Sheean,  Pond  v.  (132  111.  312),  140,  490 
Sheehy  v.  Adarene  (41  Vt.  541),  290a. 
Sheets,  Lawman  v.  (124  Ind.  416),  143. 
Sheffield  v.  Collier  (3  Kelly,  Ga.  82), 

28. 
Sheffield  Union  Co.,  Ex  parte  (13  L.  T. 

N.  8.  477),  62. 

Shehan,  Sennett  v.  (27  Minn.  328),  122. 
Sheid  v.  Stamps  (2  Sneed,  Tenn.  172), 

373,  376. 
Shelby  Mfg.  and  Imp.  Co.,  Nelson  v. 

(96  Ala.  515),  118,  384- 
Sheldon  v.  Butler  (24  Minn.  613),  165. 

v.  Preva  (57  Vt.  263),  452,  474. 

Sheley  v.  Whitman  (67  Mich.  397),  371. 
Shell,  Smith  v.  (82  Mo.  215),  384. 
Shellhammer  i>.  Ashbaugh  (83  Pa.  St. 

24),  467. 

Shelton  v.  Alcox  (11  Conn.  240),  75. 
Shepard  v.  Spaulding   (4   Met.   Mass. 

416),  43. 
Shephard,  Clapp  v.  (23  Pick.  Mass.  228), 

297 
Shepherd  ».  Bevin  (9  Gill,  Md.  32),  454, 

487,  403. 

,  Cady  r.  (11  Pick.  Mass.  400),  14a. 

v.  Pressey  (32  N.  H.  49),  3186. 

v.  Shepherd  (I  Md.  Ch.  Dec.  244), 

454,  467,  493. 
Shepler,  Frye  v.  (7  Pa.  St.  91),  454, 473, 

474,  493. 
Sheppard,  Maberley  v.  (10  Bing.  99), 

316<f,  321c. 
Sherburne  v.  Fuller  (6  Mass.  133),  60. 

v.  Shaw  (1  N.  H.  157),  373,  374. 

Sherer  v.  Trowbridge  (135  Mass.  600), 

385. 

Sheridan,  Burden  v.  (36  Iowa,  125),  96. 
Sherill,   Benedict  v.  (Hill  &  D.  N.  Y. 

219),  400. 
Sherman  ??.  Champlain  Trans.  Co.  (31 

Vt.  162),  276a. 


Sherman  v.  Fitch  (98  Mass.  59),  13. 

,  Lisk  v.  (25  Barb.  N.  Y.  433),  126. 

,  Nims  v.  (43  Mich.  45),  122. 

,  Walker  w.  (11  Met.  Mass.  170), 

190. 

Sherrill  v.  Hagan  (92  N.  C.  345),  270. 
Sherron,  Con  way  v.  (2  Cranch,  C.  C. 

80),  487. 
Sherry,  Castleman  v.  (42  Tex.  59),  461. 

v.  Picken  (10  Ind.  376),  246. 

Sherwood,  Ballou  r.  (32  Neb.  666),  385. 

v.  Stone  (14  N.  Y.  267),  213. 

Shields,  Davis  V.  (26  Wend.  N.  Y.  341), 

351,  356,  369,  382,  384. 

,  Gal  way  v.  (66  Mo.  313),  122. 

v.  Middleton  (2  Cranch,  C.  C.  205), 

172. 
Shindlerv.  Houston  (1  Denio,  N.  Y.52), 

319. 

v.  Houston  (1  N.  Y.  268),  320. 

Shinn,  Wills  v.  (42  N.  J.  Law,  138),  174. 
Shipham,  Hewlins  i;.  (5  Barn.  &  C.  221), 

24. 
Shipley,  McElderry  v.  (2  Md.  25),  84. 

v.  Patton  (21  Ind.  169),  291. 

,  Weaver  v.  (127  Ind.  526). 

Shipman  v.  Campbell  (79  Mich.  82), 

384. 

Shipp,  Sitton  v.  (65  Mo.  297),  456. 
Shippey  v.  Derrison  (5  Esp.  190),  354. 
Shirley  v.  Shirley  (7  Blackf.  Ind.  452), 

865,  366. 
v.  Spencer  (4  Gilm.  III.  683),  465, 

493. 

Shitz  v.  Dieffenbach  (3  Pa.  St.  233),  64. 
Shockley,  Anderson  v.  (82  Mo.  250), 

491a. 
Shook   v.   Vanmater   (22   Wise.    532), 

161c  204 

Shoop,  Holliday  v.  (4  Md.  465),  89,  91. 
Shore,  Balmain  v.  (9  Ves.  600),  259. 
Short,  Champion  v.  (1  Camp.  53),  335. 
v.  Spackman  (2  Barn.  &  Ad.  962), 

351. 

v.  Stotts  (58  Ind.  29),  21 5«. 

Shorter,  Jones  v.  (1  Kelly,  Ga.  294), 

161c. 

Shortrede  v.  Cheek  (1  Ad.  &  E.  67),  403. 
Shotwell  i>.  Sedam  (3  Ohio,  6),  77,  230. 
Showalter  v.  McDonnell  (83  Texas, 

158). 

Showier,  Coldham  v.  (3  C.  B.  312),  406. 
Shreve  v.  Grimes  (4  Litt.  Ky.  220),  119. 
Shropshire,  Rawlins  r.  (45  Ga.  182), 

454,  461. 

Shuder  r.  Newby  (85  Tenn.  348),  134. 
Shulman,  Graves  v.  (59  Ala.  406),  204. 
Shultis,  Wood  v.  (4  Hun,  N.  Y.  309), 

257. 

Shultz,  Clark  v.  (4  Mo.  235),  233. 
,  Stoney  v.  (1  Hill,  S.  C.  Eq.  499), 

17. 
Shumate  v.  Farlow  (125  Ind  369),  282a. 


CIV 


TABLE   OF   CASES. 


Shunick,  Rockford  R.  K.  v.  (65  III.  223), 

10. 
Slmte  v.  Dorr  (5  Wend.  N.  Y.  204),  118, 

124,  282a. 
Siau  v.  Piggott  (1  Nott  &  McC.  S.  C. 

124)  ,205 
Sickels,  Packet  Co.  v.  (5  Wall.  U.  S. 

580),  282. 
Siddens,  Keadle  o.  (5  Ind.  App.  Ct.  8), 

193. 

Sidway,  Hanier  v.  (124  N.  Y.  538),  508. 
Sievewright  v.  Archibald  (17  Q.  B.  103), 

351,352«,  353. 

Sigerson,  Cliarpiot  v.  (25  Mo.  63),  473. 
Siggers,  Haseltine  v.  (1  Exch.  856),  206. 
Sikes,  Nettleton  v.  (8  Met.  Mass.  34), 

245. 
Silence,  Brewster  v.  (8  N.  Y.  207),  406, 

407. 

Silsbee  v.  Ingalls  (10  Pick.  526),  186. 
Silsby  v.  Frost  (3  Wash.  Terr.N.s.  388), 

1666. 
Silverthorn,  Miranville  v.  (1  Grant,  Pa., 

410),  231. 

,  Randall  v.  (4  Pa.  St.  173),  81. 

Silvester  v.  Jarman  (10  Price,  78),  65. 
Simmonds  v.  Humble  (13  C.  B.  N.  8. 

262),  319a. 
Simmons,   Farebrother  P.  (5   Barn.  & 

Aid.  333),  367,  368. 

r.  Headlee  (94  Mo.  482),  478. 

,  Rogers  v.  (55  111  76),  95. 

v.  Spruill  (3  Jones,  N.  C.  Eq.  9), 

385. 
Simmons  Co  v.  Mullen  (33  Minn.  195), 

3276. 

Simmons  Estate  (140  Pa.  St.  567),  467. 
Simms  v.  Killian  (12  Ired.  N.  C.  252), 

229. 

Simon,  Jamison  v.  (68  Cal.  17),  338. 
v.  Metivier  or  Motives  (1  W.  Bl. 

599),  293,  369. 
Simonds  ?•.  Catlin  (2  Caines,  N.  Y.  61), 

77,  78,  265. 
,  Giles  v.  (15  Gray,  Mass.  441),  27, 

255. 

,  Norton  v.  (124  Mass.  19),  138A. 

Simons  v.  Morehouse  (88  Ind  391),  38. 

r.  Steele  (36  N.  H.  73),  191,  406. 

Simonton,  Lehow  v.  (3  Col.  346),  505. 
Simpson,  Anderson  v.  (21  Iowa,  399), 

467,  476. 

,  Angel  v.  (85  Ala.  53),  499. 

,  Christie  v.   (1   Rich.  S.  C.  Law, 

407),  369. 

v.  Hall  (47  Conn.  417),  135. 

v.  Harris  (21  Nev.  353),  197. 

t\  Krumdick  (28  Minn.  352),  316a, 

316c,  329. 
,  Lindley  v.  (45  111.  App.  Ct.  648), 

1666. 
,  McDowell  v.  (3  Watts,  Pa.  129), 

17,  38. 


Simpson  v.  Nance  (1  Speers,  S.  C.  Law, 

4),  161c,  187. 

v.  Patten  (4  Johns.  N.  Y.  422),  170. 

v.  Penton  (2  Cromp.  &  M.  430),  199. 

,  Raukin  r.  (19  Pa.  St.  471),  485, 

493. 

,  Reynolds  v.  (74  Ga.  454),  197, 199. 

,  Thompson  v.  (128  N.  Y.  270),  448. 

Sims,  Gordon  v.  (2  McCord,  S.  C.  Ch. 

151),  369. 
v.  Hutchins  (8  Smedes  &  M.  Miss. 

328),  122. 
v.  McEweu  (27  Ala.  184),  118. 


Sinclair  v.  Richardson  (12  Vt.  33),  199. 
Sines  v.  Superintendents  of  Poor  (58 

Mich.  503),  278a,  281a. 
Singer  v.  Carpenter  (125  111.  117),  135. 
Singer  Mfg.  Co.  v.  Sayre  (75  Ala.  270), 

1356. 

Singerly,  Cole  v.  (00  Md.  348),  291. 
Singstack  v.  Harding  (4  Harr.  &  J.  Md. 

186),  369. 

Sipe,  Worley  v.  (Ill  Ind.  238),  117,  272. 
Sisson,  Wilber  v.  (53  Barb.  N.  Y.  258), 

20. 

Sites  v.  Kellar  (6  Ohio,  207),  448. 
Sitton  v.  Shipp  (65  Mo.  297),  456. 
Sitwell,  Att'y  Gen'l  v.  (1  Younge  &  C. 

Exch.  583),  498,  500. 
Skelton    v.   Brewster   (8  Johns.   N.  Y. 

376).  169,  193. 
Skett  v.  Whitmore  (Freem.   Ch.  280), 

82,  93.  461. 
Skidmore.  Caddick  v.  (2  De  G.  &  J. 

51),  2616. 

Skiles,  Switzer  v.  (3  Gilm.  111.  529),  498. 
Skinner  v.  Brigham  (126  Mass.  132), 

12fc. 

v.  Conant  (2  Vt.  453),  198. 

v.  McDouall  (2  De  G.  &  S.  265), 

511,  519. 
,  Trull  v.  (17  Pick.  Mass.  213),  60, 

61. 

,  Vulecerich  v.  (77  Cal.  239),  256. 

Slade,  Russell  v.  (12  Conn.  455),  278a. 

,  Seton  v.  (7  Ves.  365),  365,  366. 

Slagle,  Jefferson  County  v.  (66  Pa.  St. 

202),  199a. 
Slater,  Caballero  v.  (14  C.  B.  300),  399, 

406 
,  Emerson  v.  (22  How.  U.  S.  28), 

212,  214,  214a. 

,  Scoggin  v.  (22  Ala.  687),  233. 

v.  Smith  (117  Mass.  95),  365,  385. 

Slauson,  Brown  v.  (23  Wise.  244),  294a. 
Slaymaker  v.  St.  John  (5  Watts,  Pa. 

27),  81. 
Sleeper,  Atkins  v.  (7  Allen,  Mass.  487), 

36 
Slevin  v.  Wallace  (64  Hun,  N.  Y.  288), 

260,  2616,  261.7- 
Slingerland  v.  Morse  (7  Johns.  N.  Y. 

463),  205,  209. 


TABLE   OF   CASES. 


CV 


Slingerland  v.   Slingerland  (39  Minn. 

197),  466. 

Sloan,  May  v.  (101  U.  S.  231).  611. 
v.  Wilson  (4  Harr.  &  J.  Md.  322), 

391. 
Slocum  v.  Seymour  (36  N.  J.  L.  138), 

256,  257«. 

v.    Wooley   (43    N.  J.   Eq.  451), 

271. 
Slubey,  Jones  v.  (5  Harr.  &  J.  Md.  372), 

100,  102. 
Small,  Jeffereys  v.  (1  Vern.  217),  259, 

2(50.  " 
,  Moore  v.  (19  Pa.  St.  461),  226, 448, 

454,467,471,473,474,493. 
v.  Northern  Pacific  R.  li.  (20  Fed. 

Rep.  753),  475. 
v.  Owings  (1  Md.  Ch.  Dec.  363), 

607,  511,519. 

v.  Schaefer  (24  Md.  143),  214*. 

,  Stanton  t;.  (3  Sandf.  N.  Y.  230), 

320. 

v.  Stevens  (65  N.  H.  209),  3%. 

Smalley  r.  Greene  (52  Iowa,  241),  289. 
Smart  v.  Harding  (15  C.  B.  652),  117a, 

231. 
,  Leinau  v.  (11  Humph.  Tenn.308), 

269. 

,  Smart  (--.  (24  Hun,  N.  Y.  127),  117. 

,  Smart  v.  (97  N.  Y.  659),  1666. 

Smick,  Carman  v.  (3  Green.  N.  J.  Law, 

252),  293. 

Smilie,  Adams  v.  (50  Vt.  1),  122. 
Smith,  Ex  parte  (2  M.  I).  &  De  G.  587), 

62. 

,  Andrews  v.  (Tyrw.  &  G.  173),  187. 

v.  Arnold  (5  Mas.  C.  C.  414),  265, 

353,  354,  3G7,  369,  376. 

,  Barker  v.  (92  Mich.  336),  348. 

,  Barton  v.  (66  Iowa,  75),  128,  471, 

476. 

,  Bleakly  r.  (11  Sim.  150),  357. 

».  Bouck  (33  Wise.  19),  298. 

,  Boykin  v.  (3  Munf.  Va.  102),  265, 

269. 

v.  Brerman   (62  Mich.  349),  327, 

3276. 
c.  Bryan  (5  Md.  141),  236,  255a. 

Bullard  i>.  (139  Mass.  497).  294«. 

v.  Burnham  (3  Sumn.  C.  C.  435), 

84,  90,  136,  229,  261«. 

r.  Carroll  (112  Pa.  St.  390),  186. 

,  Chamhliss  v.  (30  Ala.  366),  95, 

484,  485. 

,  Chastain  v.  (30  Ga.  96),  96. 

,  Coleman  v.  (55  Texas,  254),  75. 

v.  Conlin  (19  Hun,  N.  Y.  234),  276, 

282. 

,  Cooper  v.  (15  East,  103),  371a. 

,  Cranston  r.  (6  R.  I.  231),  605. 

v.  Dallas  (35  Ind.  255),  384. 

v.  Delaney  (64  Conn.  264),  161c. 

v.  Devlin  (23  N.  Y.  363),  34,  46. 


Smith,  Donaldson  v.  (1  Ash  in.  Pa.  197), 
36. 

Dorwin  v.  (35  Vt.  69),  159. 

Doty  v.  (62  Hun,  N.  Y.  598),  298. 

Dunbar  v.  (66  Ala.  490),  200u. 

v.  Easton  (54  Md.  138).  174. 

Ellis  v.  (1  Ves.  Jr.  10)',  9. 

Emery  v.  (46  N.  H.  161),  126,  289, 

290 

v.  Evans  (1  Wils.  313),  9,  355. 

v.  Evans  (36  S.  C.  69),  319,  321c. 

r.  Exchange   Bank   (110   Pa.   St. 

508),  187. 

,  Felton  v.  (84  Ind.  485),  477. 

,  Fentiman  t;.  (4  East,  107).  25. 

v.  Fisher  (69  Vt.  63),  319. 

v.  Garth  (32  Ala.  368),  90. 

i?.  Goulding  (6  Cush.  Mass.  154), 

270. 
,  Gray  v.  (L.  R.  43  Ch.  D.  208), 

262. 
v.  Greer  (3  Humph.  Tenn.  118), 

223 

L-.  Hamilton  (20  Mich.  433),  75. 

v.  Harris  (2  Stark.  47),  183,  185. 

,  Kelt  v.  (74  Iowa,  667),  200n. 

v.  Howell   (3    Stockt.  N.  J.  Ch. 

349),  97. 
v.  Hudson  (6  Best  &  S.  431),  Z2ld, 

3276. 

,  Huntington  v.  (4  Conn.  235),  65. 

v.  Hyde  (19  Vt.  54),  196,  199. 

v.  Ide  (3  Vt.  290),  391,  407. 

v.  Ives  (15  Wend.  N.  Y.  182),  404. 

405. 
,  Jacob  v.  (5  J.  J.  Marsh.  Ky.  380), 

130. 
,  James  v.  (L.  R.  1  Ch.  D.  1891, 

384),  96. 
,  Jervis  v.  (Hoff.  N.  Y.  Ch.  470), 

454,  483. 
v.  Jones  (7  Leigh,  Va.  165),  309, 

382. 

,  Jones  v.  (64  N.  Y.  180),  75. 

v.  Jones  (66  Ga.  338),  365. 

,  Joseph   v.  (57  N.  W.  Rep.  Nob. 

1012),  200a. 
,  Kansas  City   Sewer  Pipe   Co.  r. 

(36  Mo.  App.  608),  197,  212, 

214. 
».  Kelley  (27  Me.  237),  65. 

Kellum  v.  (33  Pa.  St.  158),  90. 96. 

Kessler  v.  (42  Minn.  494),  346a. 

Kimball  v.  (117  Pa.  St.  183),  95. 

Kingt>.  (33  Vt.  22),  117. 

Laurence  v.  (27  How.  N.  Y.  Pr. 

327),  257«. 
,  Leven  v.  (1  Denio,  N.  Y.   671), 

326. 

,  Loomis  v.  (17  Conn.  115).  198. 

v.  Loomis  (74  Me.  50.°,),  426. 

v.  Lotton  (5  Ind.  App.  Ct.  177), 

118. 


CV1 


TABLE  OF  CASES. 


Smith,  McCue  v.  (9  Minn.  252),  116. 

,  Mackey  v.  ('21  Ore.  598),  197. 

v.  Matthews  (3  De  G.  F.  &  J.  139), 

98. 
,  Meech  v.  (7  Wend.  N.  Y.  315), 

212. 
v.  Milliken  (7  Lans.   N.   Y.  336), 

334,  336. 

,  Moody  v.  (70  N.  Y.  598),  118. 

v.  Neale  (2  C.  B.  N.  s.  67),  288. 

v.  New  York  Cent.  R.  R.  (4  Keyes, 

N.  Y.  180),  306. 
v.  Niver  (2  Barb.  N.  Y.  180),  50, 

53,56. 
,  O'Donnell   v.    (2    E.    D.   Smith, 

N.  Y.  124),  172. 

,  Pain  v.  (2  Mylne  &  K.  417),  62. 

,  Parker  v.  (1  Coll.  Cli.  008),  357, 

454,  460. 

o.  Price  (39  111.  28),  236. 

o.  Pritehett  (98  Ala.  649),  511. 

,  Raub   v.   (61   Mich.   543),  261d, 

261.9. 
,  Rutledge  v.  (1  McCord,  S.  C.  Ch. 

119),  97,  103,  104,109. 
v.  Say  ward  (5  Greenl.  Me.  504), 

16  Ic,  204. 

,  Sears  v.  (3  Col.  287),  272. 

v.  Shell  (82  Mo.  215),  384. 

,  Slater  v.    (117    Mass.   95),   365, 

385. 

v.  Smith  (125  N.  Y.  224),  49 la. 

v.  Smith  (85  111.  189),  84,  90. 

v.  Smith  (I  Ired.  N.    C.    Eq.  83), 

119. 

v.  Smith  (4  Dutch.  N.  J.  208),  119. 

v.  Smith  (14  Vt.  440),  120. 

v.  Smith  (1  Rich.  S.  C.  Eq.  130), 

469. 
,  Stebbins  v.  (4  Pick.  Mass.  97), 

186. 
v.  Surman   (9  Barn.   &.  C.  561), 

242,  245,  251,  303,  315,  37  la. 
,  Syme  v.  (92  N.  C.  338),  122. 

v.   Tarlton    (2   Barb.  N.    Y.    Ch. 

336),  260. 

v.  Theobald    (86   Ky.    141),   366, 

505. 

v.  Tombs  (3  Jur.  72),  231. 

,  Tompkins  v.  (3   Stew.  &  P.  Ala. 

54),  193,  212. 

v.  Tramel  (68  Iowa,  488),  134. 

v.  Underdunck  (1  Sandf.  N.  Y.  Ch. 

579),  475,  484. 

,  Vaughn  v.  (65  Iowa,  579),  204. 

v.  Webster  (3  Ch.  Div.  49),  370 

v.  Westall  (1  Ld.  Raym.  316),  278- 

,  Williams  v.  (37  N.  E.  Rep.  Mass. 

455),  371a. 
,  Wright    v.   (81    Va.    777),    187, 

214c. 
,  Wyman  v.  (2  Sandf.  N.  Y.  331), 

187. 


Smith  v.  Yocum  (110  111.  142),  465. 
Smock,  Smock  v.  (37  Mo.  App.  56),  256, 

289. 
Smyth,   Doe  v.    (6  Barn.  &   C.    112), 

267. 

Sneath,  Feusier  v.  (3  Nev.  120),  448. 
Sneed  v.  Bradley  (4  Sneed,  Tenn.  301), 

135. 
Snell  v  Rogers  (70  Hun,  N.  Y.  462), 

157. 
Snelling  v.  Huntingfield   (1  C.  M.  R. 

20),  118,  291. 

v.  Thomas  (L.  R.   17  Eq.  303), 

409. 
Snider,  Duff  v.  (54  Miss.  245),  278«, 

289. 

v.  Thrall  (56  Wise.  674),  3196. 

Snisheimer,    Lafliii    &   Rand    Powder 

Co.  v.  (48  Md.  411),  172. 
Snow,  Douglass  v.  (77  Me.  91),  508. 

,  Draper  v.  (20  N.  Y.  331),  406. 

,  Monroe  v.  (131  111.  126),  269.  • 

v.  Warner  (10  Met.  Mass.  132), 

327. 
Snyder,    Storms   v.    (10  Johns.   N.   Y. 

109),  231. 
v.  Wolford  (33  Minn.  175),  269, 

367. 
Soames  v.  Spencer  (1  Dowl.  &  R.  32), 

231 
Sobey  v.  Brisbee   (20  Iowa,  105),  34, 

272. 
Soggins  »».  Heard   (31   Miss.  426),  94, 

278a. 
Soles  v.  Hickman  (20  Pa.  St.  180),  38, 

226,  376,  382«. 
Solomon,  Bennett  v.  (6  Cal.  134),  65. 

,  Colgrove  v.  (34  Mich.  494).  460. 

,  Hake  v.  (62  Mich.  377),  198. 


,  Hall  v.  (61  Conn.  476),  269. 

Solomonsky,    White  v.   (30  Md.   585), 

193. 
Somerby   v.   Buntin   (118  Mass.   279), 

281a,  297a,  298. 
Somers,  Johnson  v.  (1  Humph.  Tenn. 

268),  14. 
v.   McLaughlin   (57   Wise.   358), 

319a. 
Sonstiley  v.  Keeley  (7  Fed.  Rep.  447), 

166a. 
Soothsmith,  Benbow  v.  (76  Iowa,  151), 

198. 

Soper,  Taylor  v.  (53  Mich.  96),  164. 
Sorber,  Wack  v.  (2  Whart.  Pa.  387),  488, 

490. 
Souch  v.  Strawbridge  (2  C.  B.808),  117, 

118,288. 

Soule  v.  Albee  (31  Vt.  142),  188. 
— ^-,  Hall  v.  (11  Mich.  494),  135,  385. 
South  Baltimore  Co.  v.  Muhlbach  (69 

Md.  395),  233,  234. 
South  Park  Commissioners,  Phillips  v. 

(119  111.  626),  106. 


TABLE   OF  CASES. 


cvn 


South  Penn.  Oil  Co.,  McClintock  v.  (146 

Pa.  St.  144),  17. 
Southard,  U.  S.  Bank  v.  (2  Hair.  N.  J. 

473),  164. 

Southerin  v.  Mendum  (5N.  H.  420),  65. 
Southern  Life  Ins.  Co.  v.  Cole  (4  Fla. 

359),  298. 
Southern  Queen  Mfg.  Co.,  Citty  v.  (24 

S.  W.  Rep.  Tenn.  121),  611. 
Southgate,  Hinukley   v.    (11  Vt.  428), 

279,  281a. 
Southmayd,    Southmayd   v.    (4   Mont. 

100),  467. 

Southwell  v.  Beezley  (5  Oreg.  143),  278. 
Sovereign  v.  Ortmann  (47  Mich.  181), 

•26. 
Sower  v.   Weaver   (84  Pa.   St.  262), 

467. 

Sowles,  Bellows  v.  (57  Vt.  164.),  157. 
,  First  National  Bank  of  Plattsburg 

v.   (46  Fed.   liep.   731),    18S, 

354a. 
Spacknian.   Short  v.    (2  Barn.  &  Ad. 

962),  351. 
Spadone   v.  Heed   (7  Bush,  Ky.  455), 

166ft. 

Spainhour,  Harper  v.  (64  N.  C.  629),  64. 
Spalding  v.  Andrews  (48  Pa.  St.  411), 

172. 

,  Annor  r  (14  Col.  302),  441a. 

v.  Archibald  (52  Mich.  365),  26. 

v.  Conzelman  (30  Mo.  177),  479. 

Spangler  v.  Danforth  (65  III.  152),  354a. 
Spann  r.  Cochran  (63  Tex.  240),  165. 
Sparhawk,   Tolman   v.  (5   Met.   Mass. 

409),  75. 
Sparks,  Kluse  v.  (36  N.  E.  Rep.  Ind. 

914),  256 

Sparling  v.  Parker  (9  Beav.  450),  258. 
Sparrow  v.  Hawkes  (2  Esp.  504),  53. 
Spaulding,    Shepard   v.   (4  Met.  Mass. 

416),  73. 
Spear  v.  Bach  (82  Wise.  192),  3186. 

v.  Orendorf  (26  Md.  37).  479. 

Spears,  Douglass  v.  (2  Nott  &  McC.  S. 

C.  Law,  207),  365. 

Specht,  Miller  v.  (11  Pa.  St.  449),  228. 
Spence,   Anderson    v.    (72   Ind.    315), 

161c. 

,  Clarke  v.  (4  Ad.  &  E.  448).  138*. 

,  Weisel  v.   (59  Wise.  301),   197, 

200o. 
Spencer  v.  Cone  (1  Met.   Mass.   283), 

307. 

,  Copper  Co.  w.  (25  Cal.  18),  230. 

r.  Hale  (30  Vt.  314),  327o,  333. 

,  Hampton  v.  (2  Vern.  88),  101. 

v.  Lawton  (14  R.  I.  494).  96. 

,  Shirley  v.  (4  Gilm.  111.  583),  465, 

493. 

,  Soames  v.  (I  Dowl.  &  R.  32),  231. 

Speyer  v.  Desjardins  (144  III.  641),  269, 

262,  509. 


Speyers,  Peabody  v.  (56  N.  Y.  230) 

297,  348. 

Spicer  v.  Cooper  (1  Q.  B.  424),  380. 
,  McMurray  v.  (L.  R.  5  Eq.  527), 

385. 

v.  Spicer  (24  Beav.  367),  223. 

Spies  v.  Price  (91  Ala.  160),  465. 
Spikes,  Parry  v.  (49  Wise.  384),  391. 
Spillet,  Lloyd  v.  (2  Atk.  148),  84. 
bpooner,  Board  man  v.  (13  Allen,  Mass. 

353),  319a,  348,  367,  369,  384. 

v.  Drum  (7  Ind.  81),  204. 

,  Vanderbergh  r.  (L.  R.  1  Exch. 

316),  374. 
Sprague  v.  Blake  (20  Wend.  N.  Y.  61), 

337. 

v.  Bond  (108  N.  C.  382),  269. 

,  Bush  v.  (51  Mich.  41),  181,  183, 

1846. 

v.  Foster  (48  111.  App.  140),  283. 

v.  Haines  (68  Tex.  216),  229. 

Spraker,  Elson  v.  (100  Ind.  374),  214a. 
Spratley,   Watson  v.   (10  Exch.  222), 

258,  296, 

Spreckels,  White  v.  (76  Cal.  610),  75. 
Spring,  Perley  v.  (12  Mass.  297),  lOlc, 

163. 
Springate,  Suman  v.  (67  Ind.  115),  463, 

608. 
Springer  v.   Kleinsorge  (83  Mo.  152), 

369,  385. 

,  Lindsay  v.  (4  Harr.  Del.  547),  75. 

Springle  v.  Morrison  (3  Litt.  Ky.  52), 

129. 
Springsteen,  Rawson  r.  (2  Thomp.  &  C. 

N.  Y.  416),  199a. 
Spruill,  Simmons  v.  (3  Jones,  N.  C.  Eq. 

9),  386. 
Spurrier  v.  Fitzgerald  (6  Ves.  548),  498, 

499,  601,  505a. 
Squier,  Baldwin  r.  (31  Kans.  283),  463. 

v.  Norris  (1  Lans.  N.  Y.  282),  364. 

Squire,  McDonough  v.  (Ill  Mass.  217), 

441a. 

,  Stephens  v.  (5  Mod.  205),  164 

Staats  v.  Howlett  (4  Denio,  N.  Y.  659), 

405. 

Stacey,  Morris  v.  (Holt,  153),  402. 
Stackberger  r.  Mosteller  (4  Ind.  461), 

230.    ' 

Stadt  ».  Lill  (9  East,  348),  400. 
Stahler,  Backenstoss  r.  (33  Pa.  St.  251), 

236. 
Staight,  Tomkinson  v.  (17  C.  B.  245), 

320,  326o. 

Stamp,  Inman  v.  (1  Stark.  12),  20,  482. 
,  Sheid   v.    (2   Sneed,  Tenn.  172), 

373,  376. 
Stanbery,  Kelley  v.  (13  Ohio,  408),  229, 

465. 

Standon,  Rex  v.  (2  Maule  &  S.  461).  25. 
Stanfleld,  Jackson   v.  (37  N.  E.  Rep 

Ind.  14),  135. 


CV111 


TABLE   OF   CASES. 


Stanford,  Box  v.  (13  Smerles  &  M.  Miss. 

93),  446,  448. 

Staniland,  Parker  v.  (II  East,  362),  241. 
Stanion,  Doe  v.  (1  Mees.  &  W.  695), 

60. 
Stanley,  Davison  v.  (4  Burr.  2210),  48, 

49. 
v.  Hendricks  (13  Ired.  N.  C.  86), 

187. 
,  Lemayne  v.   (3   Lev.  1),  9,  355, 

357. 

,  Mapes  v.  (Cro.  Jac.  183),  190. 

,  Mecorney  v.  (8  Gush.  Mass.  85), 

190. 

Stansell  v.  Leavitt  (51  Mich.  536),  141. 
Stansfield  v.  Johnson  (1  Esp.  101),  369. 
Stanton,  Forth  v.  (1  Saund.  210),  190, 

194,  505a. 
,  Lie  v.  (15  Vt.  685),  293,  303,  344, 

348,  376. 

v.  Small  (3  Sandf.  N.  Y.  230),  320. 

Stapely,  Butcher  v.  (1  Vern.  363),  467. 
Staples,  Green's  Farms  Soc'y  v.  (23 

Conn.  544),  187. 

Stapp  v.  Lill  (1  Camp.  242),  400. 
Stark  v.  Cannady  (3  Litt.  Ky.  399),  78, 

85. 

v.  Raney  (18  Cal.  622),  159. 

v.  Wilson  (3  Bibb,  Ky.  476),  269. 

Starke,  Lewis  v.  (10  Smed'es  &  M.  Miss. 

120),  65. 
Starks,  Holden  v.  (159  Mass.  503),  135. 

,  Huffman  v.  (31  Ind.  474),  37. 

Starr,  Bates  v.  (6  Ala.  697),  198. 
State,  Gay  v.  (7  Kans.  246),  176. 

,  Neville  v.  (73  Tex.  629),  345a. 

,  Northern  v.  (1  Ind.  112),  303. 

,  Wright  v.  (79  Ala.  262),  187. 

Statham,  Boson  v.  (1  Eden,  508),  105. 
Staub,  Railroad    Co.  v.  (7  B.   J.   Lea, 

Tenn.  397),  276. 
Staver,  Ferguson  v.  (33  Pa.  St.  411), 

385. 
Stavert,  Wright  ».  (2  El.  &  E.  721),  20, 

87o,230. 
Stead  v.  Dawber  (10  Ad.  &  E  57),  414, 

417. 
,  Hamerton  v.  (3  Barn.  &  C.  478), 

50. 

v.  Liddard  (1  Bin?.  196),  406. 

Stearns  v.  Edson  (63  Vt.  259),  346. 
,  Cook  v.  (11  Mass  533),  26,  29. 

v.   Hall   (9  Cush.  Mass.  31),  411, 

425. 

v.  Hubbard  (8  Greenl.  Me.  320), 

515. 
Stebbins  »?.  Smith  (4  Pick.  Mass.  97), 

186. 
Stedman,   Arnold  v.  (45  Pa.  St.  186), 

204. 

,  Swan  v.  (4  Met.  Mass.  548),  14a. 

Steel  v.  Fife  (48  Iowa,  99),  354. 
v.  Steel  (4  Allen,  Mass.  417),  60. 


Steele  v.  Anheuser-Busch  Brewing  Ass 

(58N.  W.  Rep.  Minn.  685),  38 

,  Ford  v.  (31  Neb.  621),  463. 

Stowe,  Lee  v.  (57  Tex.  444),  136. 
Stowell  v.  Robinson  (3  Bing.  N.  11.  937). 

427. 

Stowers  v.  Hollis  (83  Ky.  544),  276. 
Stradling,  Wills   v.  (3   Ves.  Jr.   378), 

476,  479. 
Strafford,  Edge  v.  (1  Cromp.  &  J.  391), 

20,  32,  37,  230. 

Strait,  Brown  v.  (19  111.  88),  1666. 
Strong,  Moog  v.  (69  Ala.  98),  406. 
Stratford  v.  Bosvvorth  (2  Ves.  &  B. 

341),  37 la. 
Stratton,  Lawrence  v.  (6  Cush.  Mass. 

163),  60. 

,  Stratton  v.  (58  N.  H.  473),  491a. 

,  Wells  v.  (1   Tenn.  Ch.  328),  89, 

259,  467. 
Straw,   Wainwright    v.    (15  Vt.  215), 

197. 
Strawbridge,  Soucli  v.  (2  C.  B.  808), 

117,  118,  288. 

Strawn,  Reeve  v.  (14  111.  94),  90. 
Strehl  v.  D'Evers  (66  111.  77),  272. 
Streseveski,  Truski  v.  (60  Mich.  34), 

90. 
Strimpfler  v.  Roberts  (18  Pa.  St.  283), 

91. 
Stringfellow  v.  Ivie  (73  Ala.  209),  141, 

267. 
Strohecker  v.  Cohen  (1  Speers,  S.  C. 

Law,  349),  172. 
Strong,  Alba  v.  (94  Ala.  163),  493. 

v.  Crosby  (21  Conn.  398),  43,  46. 

,  Hedges  v.  (3  Ore.  18),  278a. 

,  Ingraham  v.  (41  III.  App.  Ct.  46), 

157. 
v.  Kamm  (13  Ore.  172),  269. 


,  Paris  v.  (51  Ind.  339),  272,  278. 

,  Vose  v.  (45  111.  App.  Ct.  98),  493. 

,  Vose  v.  (144  111.  108),  493. 

Struble  v.  Hake  (14  Brad.  III.  App.  Ct. 

546),  1666. 

Strudwick,  Legg  v.  (2  Salk.  414),  35. 
Stuart  v.  Baker  (17  Tex.  417),  69,  71. 

,  Hale  v.  (76  Mo.  20),  126. 

,  Neufville   v.   (1   Hill,  S.  C.  Eq. 

159),  382. 

,  Ward  v.  (62  Tex.  333),  461. 

Stubbs,  Cornish  v.  (L.  R.  5  C.  P.  334), 

30. 
Studds  v.  Watson  (L.  R.  28  Ch.  D.  305), 

348. 
Studemann,  Clinton  Bank  v.  (74  Iowa, 

104),  188. 
Sturgeon,  Pringle    v.    (Litt.   Ky.   Sel. 

Cas.  112),  72. 
Sturtevant  v.  Sturtevant  (20  N.  Y.  39), 

106,  441rt. 
Styron  v.  Bell  (8  Jones,  N.  C.  222), 

166a. 


TABLE   OF  CASES. 


C1X 


Suffolk    Mfg.   Co,   Tatterson  v.   (106 

Mass.  50),  278a,  281a. 
Suggett  v.  Cason  (26  Mo.  221),  278a. 
Sullivan,  Conradt  v.  (45  Ind.  180),  204. 

,  Dorris  v.  (90  Ala.  27U),  24. 

v.  Dunham  (42  Mich.  518),  267. 

v.  O'Neal  (06  Tex.  433),  354. 

v.  Ross  Estate  (98  Mich.  570),  454. 

,  Whelan  v.  (102  Mass.  204),  3«5, 

450. 
Sullivant  v.  Franklin  County  (3  Ohio, 

89),  29. 

Snmmerall  v.  Thorns  (3  Fla.  298),  138/. 
Summit,  Cloninger  v.  (2  Jones,  N.  C. 

Eq.  513),  94. 

,  King  p.  (73  Ind.  312),  156,  165. 

Park  Co.,   Roberts   v.    (72   Hun, 

N.  Y.  458),  278a. 

Sumner,  Reynolds  v.  (126  111.  58),  84. 
Sumrall,  Townsley  v.  (2  Peters,  U.  S. 

170),  172,  172u,  174,  191. 
Superintendents  of  Poor,  Sines  v.  (58 

Miclx  503),  278u,  281a. 
Supple,  Walker  v.  (54  Ga.  178),  298. 
Surcome  v.  Pinniger  (3  l)e  G.  M.  &  G. 

571),  440,  459r/,487. 
Surman,  Smith  v.  (9  Barn.  &  C.  561), 

242,  245,  251,  303,  315,  371a. 
Surnan  v.  Inman    (6   Mo.  App.  384), 

213. 
v.  Springate   (67  Ind.  115),   463, 

508. 

Surry,  Klinitz  v.  (5  Esp.  267),  334. 
Sutcliffe   v.   Atlantic   Mills   (13   R.   I. 

480),  280,  291. 
Sutherland  v.  Briggs  (1  Hare,  26),  456, 

480. 
,   Burns   v.   (7   Pa.   St.   103),  493, 

494. 

i.'.  Carter  (52  Mich.  151),  157. 

Sutphen    v.  Sutphen  (30   Kans.   510), 

279. 
Button,  Blore   v.  (3  Meriv.  237),  369, 

487a. 
,  Brown  v.  (129  U.  S.  238),  463,  467, 

474. 
v.  Grey  (L.  R.  1  Q.  B.  D.  1894, 285), 

213. 

r.  Rowley  (44  Mich.  11*2).  122. 

v.  Sears  (10  Ind.  223),  231. 

v.  Sutton  (13  Vt.  71),  122,  405. 

Suydam  v.  Clark  (2  Sandf.  N.  Y.  133), 

861. 
Swain  v.  Burnette  (89  Cal.  561),  354, 

3546. 
v.  Seamens  (9  Wall.  U.  S.  254), 

425,  457n,  458,  491. 
Swan,   Goldshede    v.  (1    Exch.   154), 

403. 

,  Masson  v.  (fi  Tenn.  460),  119. 

u.  Nesmith  (7  Pick.  Mass.   220), 

213 
,  Shahan  v.  (48  0.  St.  25),  454. 


Swan  v.  Stedman  (4   Met.  Mass.  548), 

14«. 
Swank,   Phillips   v.  (120  Pa.   St.   76), 

385. 

Swanke,  Popp  v.  (68  Wise.  364),  354a. 
Swann  v.  Phillips  (8  Ad.  &  E.  457),  182, 

Appendix,  p.  583. 
Swanstrom,  Heisley  v.  (40  Minn,  196), 

411. 

Swartz  v.  Swartz  (4  Pa.  St.  353),  31. 
Swaynie,  Tinkler  v.  (71  Ind.  562),  150. 
Swazey,  Buck  v.  (35  Me.  41),  85,  87, 

89,90 

,  N7ewton  v.  (8  N.  H.  9),  487,  499. 

,  Perry  «?.  (12  Cush.  Mass.  36),  1666. 

Sweatman  v.  Parker  (49  Miss.  19),  1066. 
Sweeny  v.  Miller  (34  Me.  388),  74. 
Sweet  v  Colleton  (96  Mich.  391),  1606. 

v.  Desha   Lumber  Co.   (50  Ark. 

629),  276. 

v.  Jacocks  (6  Paige,  N.  Y.  355), 

87,96. 

».  Lee  (3  Man.  &   G.  452),  289, 

362,  388. 
Sweeting,  Bailey  v.  (9  C.  B.  N.  s.  843), 

\SSe,   138;',    335,    352a,   354a, 

371a. 
Sweetzer's   Appeal   (71  Pa.  St.  264), 

44  la. 
Swett,  Dows  v.  (120  Mass.  322),  165. 

,  Dows  r.  (134  Mass.  140),  165. 

,  Fuller  v.  (6  Allen,  Mass.  219,  note), 

40. 

,  Tuttle  v.  (31  Me.  555),  283. 

Swift,  Patchin  v.  (21  Vt.  292),  391,  404. 

v.  Pierce  (12  Allen,  Mass.  136), 

197,  198. 

,  Sampson  v.  (11  Vt.  315),  157. 

Swisshelm  v.  Swissvale  Laundry  Co., 

(95  Pa.  St.  367).  14a,  370a. 
Swissvale  Laundry  Co.,  Swisshelm  v 

(95  Pa.  St.  307),  14a,  370«. 
Switzer  v.  Gardner  (41  Mich.  104),  50. 

c.  Skiles  (3  Gilm.  III.  529),  498. 

Swope,  McElroy  v.  (47  Fed.  Rep.  380), 

202. 

Sword  v.  Keith  (31  Mich.  247),  275. 
Sworder,  Castle  r.  (6  Hurlst.  &  N.828), 

316/;  3186,  324,  333. 
Sykes  v.  Dixon  (9  Ad.  &  E.  697),  401. 

,  Gilbert  v.  (10  East,  150),  276. 

,  Morgan  r.  (3  Q.  B.  486,  note),  138/1 

Syler  v.  Eckhart  (1  Binn.  Pa.  878),  467, 

487. 
Sylvester,  Duncan  v.  (16  Me.  388),  71, 

72. 

Syme  v.  Smith  (92  N.  C  338),  122. 
Symes  v.  Hutley  (2  L.  T.  N.  s.  509), 

871. 
Symme?,  Stone  v.  (18  Pick.  Mass.  467), 

193. 
Symonds,  Whiteacre  v.  (10  East,  13), 

20. 


ex 


TABLE   OF  CASES. 


Symondson  v.  Tweed  (Finch,  Free.  Ch 

374),  498. 
Syms,  Richards  c.  (Barn.  Ch.  90),  65. 


T. 


Taafe,  Schroeder  v.  (11  Mo.  App.  267), 

385. 

Taft  r.  Dimond  (16  R.  I.  584),  98. 
Taggard  v.  Roosevelt  (2  E.  D.  Smith, 

N.  Y.  100),  34,  38,  272. 
Tainter,  Parker  i-.  (123  Mass.  185),  118, 

385. 

Taintor,  Bunnell  v.  (4  Conn.  568),  262. 
Talbot,  Beckwith  v.  (2  Col.  639),  348. 

Beckwith  v.  (95  U.  S.  289),  348. 

,  Bishop  v.  (6  Ves.  52,  note),  103. 

v.  Bo  wen  ( 1  A.  K.  Marsh.  Ky.  436), 

370a,  508. 
Talbott,  Childere  v.  (4  New  Mex.  168), 

37. 
Talcott,  Wainwright  v.  (60  Conn.  43), 

119. 
Taliaferro  r.  Robb  (2  Call,  Va.  258), 

190. 

v.  Taliaferro  (6  Ala.  404),  87,  96. 

Talley,  Bland  v.  (50  Ark.  71),  96. 
Tallmadge,  Eaton  v.  (24  Wise.  217),  71. 

,  Hart  v.  (2  Day,  Conn.  381),  181. 

Tallman,  Dean  n.  (105  Mass.  443),  199. 

v.  Franklin  (14  N.  Y.  584).  3466, 

385. 
Talmadge  v.  Rensselaer  R.  R.  (13  Barb. 

N.  Y.  493),  276a,  289. 
Talver  v.  West  (Holt,  178),  334. 
Tanner  v.  Volentine  (75  111.  624),  31a. 
Tansley  v.  Turner  (2  Bing.  N.  R.  151), 

319. 

Tapia  v.  Demartini  (77  Cal.  383),  65. 
Tapley  v.  Butterfield  (1  Met.  Mass.  515), 

14a. 

Tapp  v.  Lee  (3  Bos.  &  P.  367),  181. 
Tarbell,  Mygatt  v.  (78  Wise.  351),  2946. 

r.  Stevens  (7  Iowa,  163),  164. 

Tarleton  v.  Vietes  (1  Gilm.  111.  470), 

518. 
Tarlton,  Smith  v.  (2  Barb.  N.  Y.  Ch. 

336),  260. 
Tarr,  Frost  v.  (53  Ind.  390),  275. 

v.  Northey  (17  Me.  113),  159. 

Tate  v.  Foshee  (117  Ind.  322),  70. 
o.  Greenlee  (4  Dev.  N.  C.  149),  78, 

264. 

v.  Jones  (16  Fla.  216),  457a. 

v.  Reynolds  (8  Watts  &  S.  Pa.  91), 

46. 

,  Waller  v.  (4  B.  Mon.  Ky.  529),  65 

Tatge,  Tatge  v.  (34  Minn.  272),  94,  511 
Tatnell,  Keeler  r.  (23  N.  J.  L.  62),  118 

230. 

Tatterson  v.  Suffolk  Mfg.  Co.  (106  Mass 
66),  278a,  28  la. 


Tatton,  Leaper  v.  (16  East,  420),  137. 
Wade  (18  C.  B.  370),  184a. 


Tatum,  Schultz  v.  (35  Mo.  App.  136), 

279 
Taul,  Campbell  v.  (3  Yerg.  Tenn.  548), 

263. 
ravel,  Leeat  v.  (3  Me  Cord,  S.  C.  Law, 

158),  391,  406,  407. 
Tawney  v.  Crowther  (3  Bro.  C.  C.  318), 

3466. 

Tayler  v.  Waters  (7  Taunt.  374),  23. 
Taylor  v.  Allen  (40  Minn.  433),  515. 
,  Barnes  v.  (27  N.  J.  Eq.  259),  93. 

-  v.  Beech  ( 1  Ves.  Sr.  297),  459,  459a. 

518,  527. 
,  Brewster  v.  (63  N.  Y.  587),  316V, 

siew. 

v.  Chapman  (Peake,  Add.  Cas.  19), 

55. 
-,  Clark  u.  (68  Ala.  453),  508. 

-  v.  Dening  (3  Xev.  &  P.  228),  355a. 

—  v.  Drake  (4  Strobh.   S.  C.  Law, 

-  431),  174,  197,  212. 

,  Heermance  v.  (14  Hun,  N.  Y.  149), 

-  316a. 

,  Hewes  v.  (70  Pa.  St.  387),  352a. 

-  v.  Hillyer  (3  Blackf.  Ind.  433),  164. 
-,  Lawrence  v.  (5  Hill,  N.  Y.  107), 

370a. 

-  v.  Merrill  (55  111.  52),  370. 

-,  Mining  Co.  v.  (100  U.  S.  42),  230. 
-,  Mosely  v.  (4  Dana,  Ky.  542),  193. 

-  v.  Mueller  (30   Minn.   343),  236, 

3276,  331. 
v.  Pratt  (3  Wise.  674),  391. 

—  v.  Preston  (79  Pa.  St.  436),  1666. 

—  t\  Ross  (3  Yerg.  Tenn.  330),  391. 

—  v.  Salmon  (4  Mylne  &  C.  134),  96. 
v.  Sayles  (57  N.'H.  465),  4416. 

—  v.  Sopor  (53  Mich.  96),  164. 
Teaehout,  Nugent  v.  (67  Mich.  571),  117, 

118. 
17.  Wakefield  (6  El.  &  B.  765),  133, 

32 Id,  326. 

,  Walker  v.  (6  Carr.  &  P.  752),  202. 

Teague,  Barnes  v.  (1  Jones,  N.  C.  Eq 

277),  515. 

,  Boozer  v.  (27  S.  C.  348),  476. 

».  Fowler  (56  Ind.  569),  441. 

Teal  17.  Auty  (2  Brod.  &  B.  99),  236, 

251. 

Teator,  Vosburgh  r.  (32  N.  Y.  561).  75. 
Tedens,  Vallette  v.  (122  111.  607),  96. 
Teed,  Rowe  v.  (15  Ves.  372),  515,  518, 

531. 

r.  Teed  (44  Barb.  N.  Y.  96),  342«. 

Tees,  Ewing  v.  (1  Binn.  Pa.  450),  226. 
Teeters  v.  Lamborn  (43  O.  St.  144),  188. 
Tefft,  Wiswell  ?-.  (5  Kans.  156),  511. 
Telford  v.  Frost  (76  Wise.  172),  229. 
Tempest  r.  Fitzgerald  (3  Barn.  &  Aid. 

680),  816o,  3186.  3216,  323,  326. 
v.  Kilner  (3  C.  B.  249),  296. 


TABLE   OF   CASES. 


CXI 


Temple  v.  Johnson  (71  111.  13),  461. 
Templetons  p.  Bascom  (33  Vt.  132),  193, 

212 

Tenant  v.  Blacker  (27  Ga.  418),  13 
Ten  Broeck,  Updike  v.  (32  N.  J.  L.  105), 

276. 
Tennessee   Coal    Co.,    Deaton    w.    (12 

Heisk.  Tenn.  650),  282. 
Tennille,  McLure  v.  (89  Ala.  572),  76. 
Terney  v.  Doten  (70  Cal.  399),  316u. 
Terrell,  Bates  v.  (7  Ala.  129),  121. 

,  Daw  v.  (33  Beav.  218),  02. 

v.  Frazier  (79  Ind.  473),  118. 

,  Kelly  v.  (26  Ga.  551),  291. 

,  M'Millen  v.  (23  Ind.  163),  357. 

Terrill,  Linn  Boyd  Co.  v.  (13  Bush,  Ky. 

463),  384. 
Terry,  Clark  v.  (25  Conn.  395),  122a. 

,  Hamilton  v.  (11  C.  B.  954),  267. 

,   Weed  v.  (2  Doug.   Mich.  344), 

74. 
Tewart,  Morton  v.  (2  Younge  &  C.  67), 

98. 

Tewksbury,  Evoy  v.  (5  Cal.  285),  391. 
v.  Howard  (37  N.  E.  Rep.  (Ind.) 

355),  385. 
Texas  &  Pacific  R.  R.,  Warner  v.  (54 

Fed.  Rep.  922),  2766. 
Thacher  v.  Churchill  (118  Mass.  108), 

82. 
Tharp,  Dunn  v.  (4  Ired.  N.  C.  Eq.  7), 

215. 

Thayer,  Collins  v.  (74  111.  138),  122. 
v.  Luce  (22  Ohio  St.  62),  344, 345a, 

348,  354,  373. 
v.  Rock  (13  Wend.  N.  Y.  53),  141, 

254. 

Theis,  Graham  v.  (47  Ga.  479),  468. 
Theobald,  Smith  v.  (86  Ky.  141),  366, 

605. 
Therasson    v.    McSpedon    (2    Hilton, 

N.Y.  1),  210. 
Thissel,  McKeenan  v.  (33  Me.  368).  187. 
Thomas,  Brockway  v.  (36  Ark.  518),  39. 
v.  Brown  (1  Q.  B.  Div.  714),  122, 

373. 
,  Campbell  v.  (42  Wise.  437),  354a, 

3546. 

v.  Cook  (2  Barn.  &  Aid.  119),  53. 

n.  Cook  (8  Barn.  &  C.  728),  161«. 

v.  Croft  (2  Rich.  S.  C.  Law,  113), 

190. 

v.  Delphy  (33  Md.  373),  212. 

v.  Dickinson  (14  Barb.  N.  Y.  90), 

124,  451. 

Doe  v.  (9  Barn.  &  C.  288),  8,  44. 

,  Dunlap  v.  (69  Iowa,  358),  230. 

v.  Elliott  (3  Mees.  &  W.  170),  326, 

335,  511. 

,  Falmouth  w.  (1  Cromp.  &  M.  89), 

126,  233.  264. 
,  Fish  v.  (f>  Gray,  Mass.  45),  164, 

200a,  204. 


Thomas   v.   Hammond    (47   Tex.   42), 

278a,  509. 
,  Hipdon  P.  (1  Harr.  &  G.  Md.  139), 

357. 
-  v.  Nelson  (64  N.  Y.  118),  34. 

,  Pillow  v.  (1  Baxt.  Tenn.  120),  91. 

,  Schmidt  v.  (75  Wise.  629),  320. 

,  Scott  v.  (1  Scam.  111.  68),  177, 

204. 
-,  Snelling  v.   (L.  R.  17  Eq.  303), 

409. 

—  v.  Welles  (1  Root,  Conn.  57),  176. 
v.  Williams  (10  Barn.  &  C.  664), 

146. 

Thome  v.  Seabright  (Salk.  24),  23. 
Thomlinson,  Fricker  v.  (I  Man.  &  G. 

772),  338,  352a. 
Thompson  v.  Alger  (12  Met.  Mass.  428). 

298,  343. 

,  Allen  v.  (10  N.  H.  32),  202. 

,  Austin  v.  (45  N.  H.  113),  38. 

v.  Blanchard  (3  N.  Y.  335),  157, 

393. 

,  Bliss  v.  (4  Mass.  488),  268. 

v.  Bond  (1  Camp.  4),  185. 

v.  Carr  (6  N.  H.  610),  13. 

,  Casler  v.  (3  Green,  N.  J.  Ch.  69), 

487. 

,  Davis  v.  (13  Me.  209),  38. 

,  De  Biel  v.  (3  Beav.  469),  3466, 

440,  459a. 

v.  Dixon  (3  Bro.  C.  C.  199),  259. 

,  French  v.  (6  Vt.  64),  202. 

p.  Gordon  (3  Strobh.  S.  C.  Law, 

196),  276. 

p.  Gould  (20  Pick.  Mass.  134),  451. 

v.  Hall  (16  Ala.  204),  391. 

,  Irving  P.  (4  Bibb,  Ky.  295),  12. 

v.  Jamesson  (1  Cranch,  C.  C.  295), 

616. 
p.  Mason  (4  Bibb,  Ky.  196),  119, 

129. 

,  May  P.  (L.  R.  20  Ch.  D.  705),  298. 

,  Meyer  p.  (19  Ore.  194).  316/. 

,  O'Reilly  v.  (2  Cox,  271),  454,460, 

492 

,  Peck  p.  (16  Vt.  637),  157,  159. 

,  Phillips  P.  (1   Johns.  N.  Y.  Ch. 

131),  28,  270,  456,  492,  493. 
,  Sands  P.  (43  Ind.  18),  266,  468, 

488. 

p.  Simpson  (128  N.  Y.  270),  448. 

P.  Tilton  (34  N.  J.  Eq.  306),  269a. 

p.  Tod  (Peters,  C.  C.  880),  616, 

618. 

,  Walrath  v.  (4  Hill,  N.  Y.  200),  403. 

Thorns,  Summerall  P.  (3  Fla.298),  138/. 
Thomson  p.  Scott  (I  McCord,  S.  C.  Ch. 

32),  483,  493. 

r.  White  (1  Dall.  Pa.  424),  442. 

p.  Wilson  (2  Stark.  379),  45,  65. 

Thorn bronph  v.   Baker    (Cas.   in   Ch. 

283),  65. 


CX11 


TABLE   OF   CASES. 


Thornburg  v.  Hasten  (88  N.  C.  293), 

377. 
Tborndike   v.  Barrett  (3   Greenl.  Me. 

380),  74a. 

,  Barrett  v.  (1  Greenl.  Me.  73),  59. 

Thome,  Dunlap  v.  (1  Rich.  S.  C.  Law, 

213),  205. 

Thornly,  Wood  v.  (58  111.  464),  488. 
Thornton    v.  Charles  (9   Mees.  &   W. 

802),  351. 

v.  Di.xon  (3  Bro.  C.  C.  199),  259. 

r.  Guice  (73  Ala.  321),  193. 

v.  Jenyns  (1  Man.  &  G.  166),  403. 

v.  Kelly  (11  R.  I.  498),  373. 

v.  Kempster  (5  Taunt.  786),  351, 

352a. 

r.  Meux  (Moo.  &  M.  43),  351. 

Ritch  v.  (65  Ala.  309),  508. 

v.  Vaughan  (2  Scam.  111.  218),  465, 

508. 

r.  Williams  (71  Ala.  555),  175. 

Thoroughgood's  Case  (2  Coke,  Rep.  5), 

11. 
Thorpe,  Pembroke  r.  (3  Swanst.  441, 

note),  76,  452,  460. 
Thrailkill,  Robinson  v.  (110  Ind.  117), 

31a. 

Thrall,  Snider  v.  (56  Wise.  674),  319ft. 
Throop,  Brown  v.  (59  Conn.  596),  285. 
Thuey,  Kelley  v.  (102  Mo.  529),  373. 
Thwaites,  Rohde  v.  (6  Barn.  &  C.  388), 

336. 
Thwaits  v.  Curl  (6  B.  Mon.  Ky.  472), 

198. 

Thwing,  Gascoigne  v.  (1  Vern.  366),  91. 
Thynn  v.  Thynn  (1  Vern.  296),  94. 
Thynne  v.  Glengall  (2  H.  L.  C.  131), 

354,  460. 

Tibbals,  Linsley  v.  (40  Conn.  522),  371a. 
Tibbett,  Morton  v.  (15  Q.  B.  428),  316/, 

328. 

Tibbs  v.  Barker  (1  Blackf.  Ind.  58),  465. 
Tice  v.  Freeman  (30  Minn.  389),  348, 

385. 

Tiernan  v.  Granger  (65  111.  351),  283. 
Tiernay,  Bennett  v.  (78  Ky.  580),  498. 
Tierney,  Lasence  v.  (1  McN.  &  G.  551), 

459a. 

v.  Wood  (19  Beay.  330),  106,  107. 

Tift,  Davis  v.  (70  Ga.  52),  157. 

,  Winjjard  v.  (24  Ga.  179),  31. 

Tighe  v.  Morrison  (41  Hun,  N.  Y.  1), 

212. 
v.  Morrison  (116  N.  Y.  263),  161c, 

163,  212. 

Tiler,  Langfort  r.  (1  Salk.  113),  341. 
Tileston,  Bridgham  v.  (5  Allen,  Mass. 

371),  42. 
v.  Nettleton  (6  Pick.  Mass.  509), 

195,  197. 

Tillou,  Collins  v.  (26  Conn.  368),  441a. 
Tillson,  Farwell  v.  (76  Me.  227),  279, 

281. 


Tilton,  Thompson  v.  (34  N.  J.  Eq.  306), 

269a. 
Timerson,  Raynor  v.  (51  Barb.  N.  Y. 

517),  75. 

Timlin,  Elkins  v.  (151  Pa.  St.  491),  214. 
Timmons,  Coney  v.  (16  S.  C.  378),  469. 
Tindal,  Hutchinson  v.  (2  Green,  N.  J. 

Ch.  357),  99,  102. 

v.  Touchberry  (3  Strobh.  S.   C. 

Law,  177),  177,  205. 
Tingle,  Davis  v.  (8  B.  Mon.  Ky.  539), 

77. 
Tingley   v.   Bellingham   Boon    Co.    (5 

Wash.  644),  357. 

Tinkler  v.  Swaynie  (71  Ind.  562),  150. 
Tippets  r.  Walker  (4  Mass.  595),  258. 
Tirrell,  Holbrook  v.  (9  Pick.  Mass.  105), 

60. 
Tisdale  r.  Harris  (20  Pick.  Mass.  13), 

296a. 
,  Moore  v.  (5  B.  Mon.   Ky.  352), 

129. 

v.  Morgan   (7   Hun,  N.   Y.  583), 

1666. 
Titus,  Jackson  v.  (2  Johns.  N.  Y.  430), 

12a,  360. 

Toan  v.  Pline  (60  Mich.  385),  117. 
Tobey,  McNew   v.  (6   Humph.   Tenn. 

27),  120. 

,  Todd  v.  (29  Me.  219),  187. 

Tobie,  Miller  v.  (41  N.  H.  84),  119,  122, 

487. 
Tod,  Thompson  v.  (Peters,  C.  C.  380), 

515,  518. 
Todd,  Raikes  v.  (8  Ad.  &  E.  846),  338, 

399,  405. 

v.  Tobey  (29  Me.  219),  187. 

Tolley  v.  Greene  (2  Sandf.  N.  Y.  Ch. 

91),  276. 
Tolman   v.  Sparhawk  (5    Met.   Mass. 

469),  75. 
Tombs,  Cooke    v.  (2    Anst.  420),  141, 

354. 

,  Smith  v.  (3  Jur.  72),  231. 

Tomkinson  v.  Staight  (17  C.  B.  245), 

320,  326a. 
Tomlin,  Bolton  v.  (5  Ad.  &  E.  856),  32, 

37,  116. 

v.  Hilyard  (43  111.  300),  70. 

Tomlinson  v.  Cell  (6   Ad.  &  E.  571), 

203. 

v.  Gill  (Arab.  330),  153,  211. 

v.  Miller  (7  Abb.  N.  Y.  Pr.  N.  8. 

364),  298. 

,  Ryan  v.  (39  Cal.  639),  116. 

Tompkins,  Cameron  v.  (72  Hun,  N.  Y. 

109),  134. 

v.  Haas  (2  Pa.  St.  74),  335. 

v.  Smith  (3  Stew.  &  P.  Ala.  54), 

193,  212. 

Tomson  v.  Ward  (1  N.  H.  9),  60,  61. 
Toole  v.  Medlicott  (1  Ball  &  B.  393), 

456,  487. 


TABLE   OF  CASES. 


CX111 


Toomer  v.  Dawson  (Cheves,  S.  C.  68), 

351. 
Tophara,  Towle  v.  (37  L.  T.  N.  s.  309), 

505a. 

Topp,  Saunders  v.  (4  Exoh.  300),  3216. 
Toppin  P.  Lomas  (16  C.  B.  145),  229, 

266. 
Touchberry,  Tindal  v.  (3  Strobh.  S.  C. 

177),  177,  205. 
Tougli,  Coe  v.  (116  N.  Y.  273),   357, 

371a. 
Toussaint,  Carter  p.  (5  Barn.  &  Aid. 

855),  3186,  323. 
Towers  v.  Osborne  (1  Stra.  506),  293, 

300. 

-  ,  Waters  v.  (8  Excli.  401),  135. 
Towle  P.  Topham  (37  L.  T.  N.  8.  309), 

505a. 

Towne  v.  Grover  (9  Pick.  Mass.  306), 
177. 

-  ,  Steele  v.  (28  Vt.  771),  197. 
Townend  v.  Drakeford  (1  Carr.  &  K. 

20),  351,  369. 

Townsend,   Adams   v.   (1   Met.   Mass. 
483),  451. 

-  ,  Anson  v.  (73  Cal.  415),  467. 

-  v.  Ash  (3  Atk.  336),  258. 

-  ,  Benbow  p.  (1  Mylne  &  K.  506), 

85. 

-  v.  Corning  (23  Wend.  N.  Y.  435), 

13. 

-  ,  Davis  v.  (10  Barb.  N.  Y.  333),  26, 

75,  465. 

-  v.  Devaynes  (1  Mont.  Partnership, 

Appendix,  97),  259. 

-  v.  Downer  (32  Vt.  183),  72. 

-  ,  Dykers  v.  (24  N.  Y.  67),  364. 

-  v.  Fen  ton   (30   Minn.   628),   461, 

464. 

-  v.  Hargraves  (118  Mass  325),  115, 

138e,  316c,  319a,  337. 

-  v.  Hawkins  (45  Mo.  286),  448. 

-  v.   Houston   (1    Harr.    Del.   532), 

462. 

-  ,  Houston  v.  (1  Del.  Ch.  416),  462. 

-  r.  Long  (77  Pa.  St.  143),  1666. 

-  ,  Sayre  v.  (15  Wend.  N.  Y.  647), 

86,  88. 

-  p.  Sharp  (2  Overt.  Tenn.  192),  452, 

464. 

-  v.  Townsend  (6  Met.  Mass.  319), 

117. 

-  p.  Vanderwerker  (20  D.  of  C.  197), 

461. 
Townsley  v.  Sumrall  (2  Pet.  U.  S.  170), 

172,  172a,  174,  191. 
Tozers  Estate,  In  re  (46  Mich.  209), 


Tracy,  Ayliffe  v.  (2  P.  Wms.  65),  217, 

354a. 

-  ,  Bedell  P.  (65  Vt.  494),  118. 
Tradesmen's  Bank,  Gomez  v.  (4  Sandf. 

N.  Y.  102),  100. 


Tramel,  Smith  P.  (68  Iowa,  488),  134. 
Trammell  v.  Craddock  (93  Ala.  450), 

474. 
v.  Trammell  (11  Rich.  S.  C.  Law, 

471),  28,  266. 
Traphagen  v.  Burt  (67  N.  Y.  30),  96, 

262. 
Trapnall  v.  Brown   (19  Ark.   39),   96, 

611. 
Trapp,  Ohio  and  Miss.  R.  R.  v.  (4  Ind. 

App.  Ct.  69),  38. 

Trask,  Johnson  v.  (116  N.  Y.  136),  293. 
Trayer  c.  Reeder  (46  Iowa,  272),  508. 
Tray  lor  r.  Cabanne  (8  Mo.  App.  131), 

357. 

Treadwell,  Low  v.  (12  Me.  441),  411. 
Treat  v.  Hiles  (68  Wise.  344),  20. 
Lumber  Co.  p.  Warner  (60  Wise. 

183),  197. 
Trecothick,  Coles  P.  (9  Ves.  234),  3466, 

359,  369,  370«. 
Treece,  Treece  P.  (5  B.  J.  Lea,  Tenn. 

221),  119. 
Treleavan,  Kelly  P.  (5  Mees.  &  W.  498), 

400. 

Tress  P.  Savage  (4  El.  &  B.  36),  39. 
Trevor,  Pindal  P.  (30  Ark  249),  467. 
Trice  P.  Pratt  (1  Dev.  &  B.  N.  C.  Eq. 

626),  S66. 
Trinity  Church,  Johnson  v.  (11  Allen, 

Mass.  123),  344,  346. 
Tripp  v.  Bishop  (56  Pa.  St.  424),  117. 
Troll   r.  Carter  (15  W.  Va.  667),  81, 

94. 
Troughton  p.  Troughton  (1  Ves.  Sr.  86), 

366. 
Troup,  Wilson  r.  (2  Cowen,  N.  Y.  195), 

165. 

Trout,  Holmes  v.  (1  Pet.  U.  S.  171),  60. 
,  Ratliff  r.  (6  J.  J.  Marsh.  Ky.  605), 

391. 
Trowbridge,  Sherer  p.  (135  Mass  500), 

385. 
p.  Wetherbee  ( 1 1  Allen,  Mass.  361 ), 

150.  2616,  261.9. 
Troy  Fertilizer  Co.  p.  Logan  (96  Ala. 

619),  346. 
Trueman  P.  Loder  (11  Ad.  &  E.  689), 

351 
Trull  p.  Skinner  (17  Pick  Mass.  213), 

60, 61. 

Truman  v.  Truman  (79  Iowa,  606), 476. 
Truscott  v.  King  (6  N.  Y.  147),  267. 
Truski   p.  Streseveski   (60   Mich.  34), 

90. 
Trustees  of  Free  Schools  r.  Flint  (13 

Met.  Mass.  539),  164. 
Presbyterian  Church,  Whitsitt  p. 

(110  111.  125),  465. 
Tschergi,  Bullock  p.  (13  Fed.  Rep.  346), 

31 6n. 
Tucker,  Clark  »-.  (2  Sandf.  N.  Y.  167), 

327,  354a. 


CX1V 


TABLE   OF   CASES. 


Tucker  v.  Edwards  (7  Col.  209),  505. 

,  Gosden  v.  (6  Munf.  Va.  1),  463. 

v.  Grover  (60  Wise.  233),  122. 

,   Roberts  v.  (3  Exch.  632),  282a, 

37  la. 

,  Sedgwick  v.  (90  Ind.  271),  135. 

Tuckerman,  Franklin  v.  (68  Iowa,  572), 

463. 
Tufts  v.  Copen  (37  W.  Va.  623),  31. 

v.  Plymouth  Mining  Co.  (14  Allen, 

Mass.  407),  346. 

Tully,  Crooks  v.  (50  Cal.  254),  191. 
Tunison   v.  Chamberlin   (88  111.  378), 

12. 
Tunnell,  Roberts  v.  (3  T.  B.  Mon.  Ky. 

247),  124,  272. 
Tupper,  Jackson  v.  (101  N.  Y.  515), 

343. 

Turle,  Booth  v.  (L.  R.  16  Eq.  182),  94. 
Turley,  La  very  v.  (6  Hurlst.  &  N.  239), 

117. 
Turner  v.  Baker  (64  Mo.  218),  75. 

,  Coe  v.  (5  Conn.  86),  60. 

,  Ellicott  v.  (4  Md.  476),  276,  289. 

v.   Hubbell  (2  Day,  Conn.  457), 

155. 
,  Hubert  v.  (4  Scott,  N.  R.   486), 

355,  357,  370. 

v.  Johnson  (95  Mo.  431),  448. 

o.  Marriott  (L.  R.  8  Eq.  744),  120. 

,    Randall    v.    (17   Ohio   St.   202), 

279. 

,  Rawlins  v.  (1  Ld.  Raym.  736),  33. 

,  Scott  v.  (15  La.  Ann.  346),  65. 

,  Tausley  v.  (2  Bing.  N.  R.  151), 

319. 
Turnley  v.  Macgregor  (6  Man.  &  G.  46), 

Appendix,  p.  583. 
Tumour,  Morison  v.  (18  Ves.  175),  355, 

357,  514. 
Turnow  v.  Hochstadter  (7  Hun,  N.  Y. 

80),  122a,  136,290. 

Turpie  v.  Lowe  (114  Ind.  37),  188,270. 
Turpin,    Holderbaugh  v.   (75   Ind.  84), 

180. 
Turrell,  Clifford  v.  (1  Younge  &  C.  138), 

511. 

Turton  v.  Burke  (4  Wise.  119),  199. 
Tuttle  v.  Armstead  (53  Conn.  175),  187. 

,  Cutler  w.  (19  N.  J.  Eq.  549),  86,  91. 

v.  Swett  (31  Me.  555),  283. 

Tweddle  r.  Atkinson  (1  Best  &  S.  393), 

166a, 
Tweed,  Symondson  v.  (Finch,  Prec.  Ch. 

374),  498. 
Tweedy,  Gordon  v.  (71  Ala.  202),  116, 

135. 
Twidy  v.  Saunderson  (9  Ired.  N.  C.  5), 

150. 

Tyler,  Edwards  v.  (141  111.  454),  370a. 
Tynan  v.  Dulling  (25  S.  W.  Rep.  Tex. 

465),  370a. 
Tyson,  Clay  ».  (19  Neb.  530),  1666. 


u. 

Uhler  v.  Farmers'  Bank  (69  Pa.  St.  406), 

164. 
Ulen  v.  Kittredge  (7  Mass.  232),  360. 

370a. 
Ullman  v.  Meyer  (10  Fed.  Rep.  241), 

215a,  272. 
Underdunek,  Smith  v.  (1  Sandf.  N.  Y. 

Ch.  579),  475,  484. 
Underbill  «.  Allen  (18  Ark.  466),  507. 

v.  Williams  (7  Blackf.  Ind.  125), 

448,  469,  487. 
Underwood  v.  Campbell  (14  N.  H.  393), 

391. 

v.  Hossack  (38  111.  208),  360. 

Ungley  v.  Ungley  (4Ch.  Div.  73),  457a, 

459,  459«,  467. 
Union  Bank  v.  Coster  (1  Sandf.  N.  Y. 

563),  405. 

v.  Coster  (3  N.  Y.  203),  407. 

Union  Banking  Co.  v.  Gittings  (45  Md. 

181),  32a. 
Union  Insurance  Co.  v.  White  (106  111. 

67),  441. 
Union  Pacific  R.  R.  v.  Me  Alpine  (129 

U.  S.  305),  448,475. 
United  States,  Mahan  v.  (16  Wall.  U.  S. 

143),  138.9. 

,  Ryan  v.  (136  U.  S.  68),  354a. 

U.  S.  Bank  v.  Carrington  (7  Leigh,  Va. 

566),  80,  93. 

v.  Southard  (2  Harr.  N.  J.  473), 

164. 
Upcot,   Coleman   v.  (5  Vin.  Ab.  528), 

366. 
Updike  v.  Ten  Broeck  (32  N.  J.  L  105), 

276. 
Upper  Locks  v.  Abbott  (14  N.  H.  157), 

195. 
Upton  v.  Archer  (4  Cal.  85),  126 

v.  Else  (12  Moore,  303),  137. 

v.  Vail  (6  Johns.  N.  Y.  181),  181. 

Urann  v.  Coates  (109  Mass.  581),  98, 99, 

109. 
Urquhart  v.  Bray  ton  (6  Reporter,  601), 

1666,  214c. 

v.  Bray  ton  (12  R.  I.  169),  166. 

Usher  v.  Flood  (83  Ky.  552),  471. 
,  Welsh  v.  (2  Hill,  S.  C.  Ch.  166), 

164. 
Utter,  Babcock  v.  (1  Abb.  N.  Y.  App. 

Dec.  60),  31. 
,  Fox  v.  (6  Wash.  299),  305. 


V. 

Vachon,  Schoonover  v.  (121   Ind.  3), 

118. 

Vail,  Upton  v.  (6  Johns.  N.  Y.  181 ),  181. 
Valle,  Bean  v.  (2  Mo.  126),  391,  518. 


TABLE   OF   CASES. 


CXV 


Valletta  r.  Tedens  (122  111.  607),  96. 
Valpy  v.  Gibson  (4  0.  B.  837),  377,  382. 
Van  Allstine  v.  Wimple  (5  Cowen,  N.Y. 

162),  160,  152. 
Van  Berchem,  Hales  v.  (2  Vern.  617), 

461. 
Van  Campen,  Floumoy  v.  (71  Cal.  14), 

147. 
Van  Cortlandt,  Parkhurst  v.  (1  Johns. 

N.Y.  Ch.  273),  366,  452,  456, 

487,  490,  492,  498. 
Vandekar   v.   Reeves   (40   Hun,  N.  Y. 

430),  66. 

Vandemark,  Peck  v.  (99  N.  Y.  29),  348. 
Vanderbergh  v.  Spooner  (L.  It.  1  Exch. 

316),  374. 
Vanderbilt  o.  Central  R.  R.  (43  N.  J. 

Eq.  669),  327. 
Vanderlyn,  Elting  v.   (4  Johns.  N.  Y. 

237),  190,  505. 
Vanderveer,  Gano  o.  (34  N.  J.  L.  293), 

32«. 
Vandervelde,  Natchez  v.  (31  Miss.  706), 

69,  268. 
Vanderwerker,  Townsend  v.  (20  D.  of 

C.  197),  461. 
Van  Duzen,  Jackson  v.  (3  Johns.  N.  Y. 

144),  355a. 
Van  Dyne  v.  Vreeland  (3  Stock.  N.  J. 

370),  463. 

-  r.  Vreeland  (11  N.  J.Eq.  370),  507. 
Van  Keuren  v.  McLaughlin  (19  N.  J. 

Eq.  187),  229. 
Vanmater,  Shook  v.  (22   Wise.   582), 

161c,  204. 
Van  Meter  v.  McFaddin   (8  B.  Mon. 

Ky.  435),  64. 
Van  Mierop,  Pillans  v.  (3  Burr.  1663), 

172,  174,  189. 
Van  Ness,  Busick  v.  (44  N.  J.  Eq.  82), 

511. 
Vanpelt,  Craig  v.  (3  J.  J.  Marsh.  Kv. 

489),  116. 
Van  Reimsdyk  v.  Kane  (1  Gall.  C.  C. 

630),  136. 
Van  Rensselaer  v.  Penniman  (6  Wend. 

N.Y.  569),  48,51. 
Van  Schoyck  »>.  Backus  (9  Hun,  N.  Y. 

68),  282. 
Van  Slyck  v.  Pulver  (Hill  &  D.  N.Y. 

47),  204. 
Van  Valkenburgh  v.  Croffut  (15  Hun, 

N.Y.  147),  122. 
Van  Vechten,  Hutchins  t'.  (140  N.  Y. 

115),  99. 
Van  Velsor,  Johnson  v.  (43  Mich.  208), 

12. 
Van  Woert  v.  Albany  R.  R.  (67  N.  Y. 

885),  278c,  336. 
Vardiman,  Green  v.  (2  Blackf.  Ind.  324), 

233,  270. 
Varley,  Dodsley  v.  (12  Ad.  &  E.  634), 

31  la. 


Varner,  Hartley  v.  (88  111.  561),  198. 
Vass,  Chichester  v.  ( 1  Munf.  Va.  98),  221. 

,  Wilson  t;.  (54  Mo.  App.  221 ),  165. 

Vassault  v.  Edwards  (43  Cal.  458),  505. 
Vauglian  v.  Cravens  (1    Head,  Tenn. 

108),  119. 
L:  Hancock  (3  C.  B.  7GO),  141,  233, 

254. 
,  Robertson  r.  (5  Sandf.  N.  Y.  1), 

302,  30ft. 

Vaughn  v.  Smith  (65  Iowa,  579),  204. 
,  Thornton   v.   (2  Scam.   III.  218), 

465,  508. 
Vaupell  f.  Woodward  (2  Sandf.  N.  Y. 

Ch.  143),  258. 
Vauxhall  Bridge  Co.,  Ex  fiarte  (1  Glyn 

&J.  101),  258. 

Vawter  v.  Griffin  (40  Ind.  593),  298. 
Veazie,  Boynton  v.  (24  Me.  2»b),  317a, 

319. 

.  Dwinell  v.  (36  Me.  509),  87. 

Vechte  «.  Raritan  Water  Power  Co.  (21 

N.  J.  Eq.  475),  27a. 
Venable  v.  Brown  (31  Ark.  564),  122. 
Vicksburg  R.  R.  v.  Ragsdale  (54  Miss. 

200),  457a. 
Victoria   Dock  Co.,  Jones  v.  (2  Q.  B. 

Div.  314),  344. 

Videau  v.  Griffin  (21  Cal.  389),  126. 
Vielie  v.  Osgood  (8  Barb.  N.  Y.  130), 

230,  352,  356. 
Vietes,  Tarleton  v.  (1  Gilm.  III.  470), 

518. 

Villers  v.  Handley  (2  Wils.  49),  506. 
Vincent,  Douglas  v.  (2  Vern.  202),  220, 

443. 
v.  Germond  (11  Johns.  N.Y.  283), 

138e. 
Vineyard,  Prother  v.  (4  Gilm.  111.  40), 

187. 
Vining,  Baker  v.  (30  Me.  121),  86,  91, 

92,  93. 
Violett  c.  Patton  (5  Cranch,  U.  S.  142), 

391. 
,  Watson  v.  (2  Duv.  Ky.  .332),  78, 

265. 

Vliet  v.  Young  (34  N.  J.  Eq.  15),  267. 
Vogel  v.  Melms  (31  Wise.  306),  161c, 

162,  197a. 

Voight,  Blake  v.  (134  N.  Y.  69),  276. 
Volentine,  Tanner  v.  (75  111.  624),  31a. 
Von  Trotha  v.  Bamberger  (15  Col.  1), 

94,  94«,  269,  476. 
Voorhees  r.  Amsterdam  Presb.  Ch.  (17 

Barb.  N.  Y.  103),  82. 
Voorheis  v.  Eiting  (22  S.  W.  Rep.  Ky. 

80),  385. 
Vosburgh,  Jackson  v.  (9  Johns.  N.  Y. 

270),  68. 

v.  Teator  (32  N.  Y.  561),  75. 

Vose  t-.  Handy  (2  Greenl.  Me.  3->2),  65. 

v.  Strong  (45  111.  App.  Ct.  98),  493 

v.  Strong  (144  111.  108),  493. 


CXV1 


TABLE   OF   CASES. 


Vredenburgh,    Leonard    v.    (8    Johns. 

N.  Y.  29),  171,  191,  212,  391, 

407. 
,  Rosepaugh  v.  (16  Hun,  N.  Y.  60), 

118. 
Vreeland,  Van  Dyne  v.  (11  N.  J.  Eq. 

370),  507. 
Vroman,  Armstrong  v.  (11  Minn.  220), 

265. 
Vulicevich   v.  Skinner   (77   Cal.  239), 

256. 


w. 

Wack  v.  Sorber  (2  Whart.  Pa.  387),  488, 

490. 
Waddington  v.  Bristow  (2  Bos.  &  P. 

452),  238. 
Wade,  Bainbridge  v.  (16  Q.  B.  89),  388, 

403. 
v.  Newbern  (77  N.  C.  460),  119, 

355. 
,  Scudder  v.  (1  South.  N.  J.  249), 

198. 

,  Tatton  r.  (18  C.  B.  370),  184a. 

Wadsley,   Mayfield  v.  (3   Barn.  &   C. 

357),  143,  253,  254. 
Wadsworth,  Crosby  v.  (6  East,  602),  18, 

244. 

Waggoner,  Blalock  v.  (82  Ga.  122),  475. 
Wagner,  Eggleston  v.  (46  Mich.  610), 

12. 

v.  Hallack  (3  Col.  176),  198. 

,  Mease  v.  (1  McCord,  S.  C.  395), 

156. 
Wagnor  v.  Clay  (1  A.  K.  Marsh.  Ky. 

257),  164,  504. 
Wagonblast  v.  Whitney   (12   Oregon, 

83),  493. 

Wahl  v.  Barnum  (116  N.  Y.  87),  282. 
Wain  r.  Warlters  (5  East,  10),  191,  387. 
Wain wright,  Barlow  v.  (22  Vt.  88),  38, 

39. 

v.  Straw  (15  Vt.  215),  197. 

v.  Talcott  (60  Conn.  43),  119. 

Wakefield  v.  Greenhood  (29  Cal.  597), 

174. 
,  Saunders  v.  (4  Barn.  &  Aid.  595), 

381,  388,  393,  394. 
,  Taylor  v.  (6  El.  &  B.  765),  133, 

32  Iff,  326. 

Wakeford,  Wright  v.  (17  Ves.459),3.-)5 
Wakeman  v.  Dodd  (12  N.  J.  Eq.  567), 

4456. 

Walbridge,  Shaw  v.  (33  O.  St.  1),  229. 
Walbrun,  Browning  v.  (45  Mo.  477), 

122. 

Walcot,  Philpot  v.  (4  Bing.  717),  190. 
Walden  v.  Karr  (88  111  49),  187. 

v.  Murdock  (23  Cal.  540),  325. 

,  Wheeler  v.  (17  Neb.  122),  364. 

Waldron  v.  Laird  (65  Mich.  237),  117. 


Walker,  Bagby  v.  (27  Atl.  Rep.  Mil 

1033),  302. 
,  Ballard  v.  (3  Johns.  N.  Y.  Cas. 

60),  366. 

,  Blair  Co.  v.  (39  Iowa,  406),  278a. 

v.  Constable  ( 1  Bos.  &  P.  306),  369. 

,  Danforth  v.  (40  Vt.  257),  326a. 

,  Doe  v.  (5  Barn.  &  C.  Ill),  52. 

,  Elwell  v.  (52  Iowa,  256),  346a. 

v.  Herring    (21    Grat.  Va.   678), 

261rf,  2610,  369. 
».  Hill  (119  Mass.  249),  157,  197, 

198,  199a. 

v.  Hill  (21  N.  J.  Ch.  191),  95. 

,  Hugus  v.  (12  Pa.  St.  173),  493. 

v.  Johnson  (96  U.  S.  424),  278,279. 

,  Jolley  v.  (26  Ala.  690),  179. 

v.  Locke  (5  Cush.  Mass.  90),  507«. 

,  Lysaght  v.  (5  Bligh,  N.  8.  1),  403, 

518. 

v.  Metropolitan  Ins.  Co.  (56  Me. 

371),  275. 
v.  Norton  (29  Vt.  226),  157. 

v.  Nussey  (16  Mees.  &  W.  302), 

320,  337. 

v.  Railroad  Co.  (26  S.  C.  80),  276«. 

v.  Richards  (39  N.  H.  259),  197, 

505. 

v.  Richards  (41  N.  H.  388),  198. 

v.  Richardson  (2  Mees.  &  W.  882), 

44,  55,  56. 
v.  Shackelford  (49  Ark.  503),  117, 

2346. 

v.  Sherman  (11  Met.  Mass.  170), 

190. 

i'.  Supple  (54  Ga.  178),  298. 

v.  Taylor  (6  Carr.  &  P.  752),  202. 

,  Tippets  v.  (4  Mass.  595),  258. 

v.  Walker  (1  Meriv.  503),  357. 

v.  Walker  (2  Atk.  99),  441. 

,  Whitmarsh  r.  (1  Met.  Mass.  313), 

27,  245,  255. 

Walks,  Railsback  v.  (81  Ind.  409),  477. 
Wall,  Cousins  v.  (3  Jones,  N.  C.  Eq.  43), 

445a. 

,  Harris  v.  (1  Exch.  122),  Appen- 
dix, p.  583. 
v.  M..  St.  P.,  &  S.  S.  M.  R.  R.  (86 

Wise.  48),  487. 

,  Newbery  v.  (84  N.  Y.  576),  351. 

,  Newbery  r.  (65  N.  Y.  484),  384. 

Wallace,  Bayles  v.  (56  Him,  N.  Y.  428), 

197. 

v.  Brown  (10  N.  J.  Eq.  308),  497. 

v.  Carpenter  (85  111.  590),  90. 

r.  Duffield  (2  Pars.  Pa.  Eq.  Cas. 

81),  81. 

,  Hall  v.  (88  Cal.  434),  370«. 

-,  r.  Long  (105  Ind.  622),  463,  466. 
v.  McCollough  (1  Rich.  S.  C.  Eq. 

426),  10. 
,  Mechelew  v.  (7  Ad.  &E.  49),  117a, 

141,  254. 


TABLE   OF  CASES. 


CXV11 


Wallace  v.  Rappleye  (103111.  229),  230, 

454,  458. 

,  Reese  v.  (113  111.  589),  96. 

v.  Scoggins  (17  Ore.  476),  467. 

,  Slevin  v.  (64  Hun,  N.  Y.   288), 

260,  2616,  26\g. 

,  Woods  v.  (22  Pa.  St.  171),  267. 

Waller,  Ennis  v.  (3  Blackf.  Ind.  472), 

78,  368,  369. 

v.  Tate  (4  B.  Mon.  Ky.  529),  65. 

Wallis  v.  Harrison  (4  Mees.  &  W.  638), 

25. 
,  Marvin  v.  (6  El.  &  B.  726),  318ft, 

320. 

Parker  v.  (5  El.  &  B.  21),  316A. 

Walls,  Bernhardt  v.  (29  Mo.  App.  206), 

511. 

Wallwyn,  Matthews  v.  (4  Ves.  118),  65. 
Walratli  v.  Ingles  (64  Barb.  N.  Y.  265), 

342a. 

. v.  Richie  (6  Lans.  N.  Y.  362),  342a. 

v.  Thompson  (4  Hill,  N.  Y.  200), 

403. 
Walsh  v.  Barton  (24  Ohio  St.  28),  373. 

,  Bass  v.  (39  Mo.  192),  3196,  320. 

r.  ColclougJi  (6  U.  S.  Cir.  Ct.  App. 

114,  50  Fed.  Rep.  778),  117. 
,  Jackson  v.  (3  Johns.  N.  Y.  226), 

13. 

v.  Kattehburgh  (8  Minn.  127),  605. 

,  Madigan  v.  (22  Wise.  601),  230. 

Walter  v.  Klock  (65  111.  362),  90,  94. 

,  Parsons  v.  (3  Doug.  14,  note),  163. 

v.  Walter  (1  Whart.  Pa.  292),  451. 

Walters  v.  Morgan  (2  Cox,  369),  615. 
Walther  v.  Merrell  (6  Mo.  App.  370), 

214. 
Walton  v.  Karnes  (67  Cal.  255),  90. 

P.  Mandeville  (66  Iowa,  597),  172. 

Wanchford  v.  Fotherley   (Freem.  Ch. 

201),  2 18,  220. 
Wannemacher,    Lerned    v.    (9    Allen, 

Mass.  412),  344,  348,  356,  424. 
Ward,  Ballard  v.  (89  Pa.  St.  358),  467. 

v.  Bartholomew   (6  Pick.   Mass. 

409),  18. 

Billingslea  v.  (33  Md.  48),  476. 

Cameron  v.  (8  Ga.  245),  445«. 

Cochran  v.  (5  Ind   App.  89),  136. 

Cocking  v.  (1  C.  B.  858),  117a. 

Comstock  v.  (22  111.  248),  272. 

r.  Lumley  (5  Hurlst.  &  N.  88),  44. 

v.  Matthews  (73  Cal.  13),  90,  290a, 

291a. 

,  May  v.  (134  Mass.  127),  384. 

,  Noble  «-.  (L.  R.  1  Exch.  117),  411, 

414,  435. 

v.  Stuart  (62  Tex.  333),  461. 

,  Tomson  v.  (1  N.  H.  9),  60.  61. 

,  Wulschner  ».  (115  Ind.  219),  293a. 

Wardell  v.  Williams  (62  Mich.  60),  346A. 
Warden  v.  Jones  (2  De  G.  &  J.  76),  223. 
Ware  v.  Adams  (24  Me.  177),  191. 


Ware,  Patterson  r.  (10  Ala.  444),  499. 

,  Sawyer  v.  (36  Ala.  676),  2936. 

v.  Stephenson  (10  Leigh,  Va.  155), 

197. 

Warfield  t;.  Dorsey  (39  Md.  299),  264. 
,  Elder  v.  (7  Harr.  &  J.  Md.  391), 

196,  197,  199,  604. 

,  Groover  v.  (60  Ga.  644),  363. 

Waring,  Reynolds  v.  (Younge,346),497. 
Warlters,  Wain  v.  (6  East,  10),  191,  387. 
Warne,  Tryer  v.  (29  Wise  611),  29,  30. 
Warneford  v.  Warneford  (2  Stra.  764), 

9,  365. 
Warner  r.  Abbey  (112  Mass.  355),  20. 

,  Cowles  v.  (22  Minn.  449),  283. 

r.  Fountain  (28  Wise.  406),  76. 

,  Cradle  v.  (140  111.  123),  345o. 

,  McCandless  v.  (26  W.  Va.  754), 

98. 

,  Milliken  r.  (62  Conn.  61),  187. 

,  Snow  v.  (10  Met.  Mass.  132),  327. 

v.  Texas  &  Pacific  R.  R.  (4  U.  S. 

Cir.  Ct.  App  673,  64  Fed.  Rep. 

922),  2766. 
,  Treat  Lumber  Co.  v.  (60  Wise. 

183),  197. 
v.  Wilimighby  (60  Conn.  468),  203, 

214e. 
Warren  r.  Barker  (2  Duv.  Ky.  155), 

181. 

v.  Barker  (2  Duv.  Ky.  166),  181. 

v.  Batchelder  (16  N.  H.  680),  1666. 

,  Buck  v.  (14  Gray,  Mass.  122),  86. 

,  Jewett  v.  (12  Mass.  300),  319. 

v.  Leland   (2   Barb.   N.  Y.  613), 

236,  266. 

v.  Warren  (105  111.  668),  463. 

Chemical   Co.   v.   Holbrook   (118 

N.  Y.  686),  279,  302. 
Warring   i;.   Williams   (8  Pick.  Mass. 

326),  14a. 

Wart  v.  Mann  (124  Mass.  686),  138c. 
Warwick  v.  Bruce  (2  Maule  &  S.  208), 

239 
v.  Grosholz    (3  Grant,  Pa.  234), 

199. 
Washabaugh  v.  Entriken   (36  Pa.  St 

613),  226. 
Washburn,  Boyce  v.  (4  Hun,  N.  Y.  792), 

264c. 

v.  Dosch  (68  Wise.  436),  289. 

v.  Fletcher  (42  Wise.  152),  346cr. 

Waterbury  v.  Graham  (4  Sandf.  N.  Y. 

216),  405. 
Waterman,    Home  National    Bank   v 

(134111.461),  164,  197. 
v.  Meigs  (4  Cush.  Mass.  497),  802, 

373. 

,  Pulsifer  r.  (73  Me.  233),  449. 

,  Rosseter  v.  (37  N.  E.  Rep.  111. 

875),  188. 
v.  Rossiter  (46  111.  App.  155),  176o, 

204. 


CXV1U 


TABLE   OF   CASES. 


Waterman  Exchange  v.  Stephens   (71 

Mich.  104),  269. 
Waters,  Donaldson   v.   (30  Ala.    17t>), 

122. 
,  Rogers  v.  (2  Gill  &  J.  Md.  64), 

164. 

,  Tayler  v.  (7  Taunt.  374),  23. 

v.  Towers  (8  Exch.  401),  135. 

Watkins,  Mellor  v.  (L.  R.  9  Q.  B.  400), 

31. 

v.  Perkins  (1  Ld.  Raym.  224),  198. 

v.  Rush  (2  Lans.  N.  Y.  234),  119. 

v.  Sands   (4   Brad.    III.    App.  Ct. 

207),  187. 
Watkyns,  Morehead  v.  (5  B.  Mon.  Ky. 

228),  38,  40. 
Watrous    v.   Chalker   (7  Conn.    224), 

116. 
Watson  v.  Baker  (71  Tex.  739),  117. 

v.  Erb  (33  Ohio  St.  35),  96. 

,  Garbutt  v.  (5  Barn.  &  Aid.  613), 

304,  306. 
,  Gilday  v.  (2  Serg.  &  R.  Pa.  407), 

465. 

v.  Jacobs  (29  Vt.  169),  193. 

.Johnson  v.  (1  Ga.  348),  289. 

v.  Kelly  (1  Harr.  N.  J.  517),  71. 

v.  Maban  (20  Ind.  223),  463. 

,  Mead  v.  (57  Vt.  426),  163. 

,  Medbury  v.  (6  Mete.  Mass.  246), 

182,  183. 
v.  Randall  (20-  Wend.  N.  Y.  201), 

189,  193. 
v.  Spratley  (10  Exch.   222),   258, 

296. 
,  Studds  v.  (L.  R.  28  Ch.  D.  305), 

348. 
v.  Violett  (2  Duv.  Ky.  332),  78, 

265. 
Watt  v.  Wisconsin  Co.  (63  Iowa,  730), 

385. 
Watters  v.  McGuigan  (72  Wise.  155), 

269. 

Watts,  Copeland  v.  (1  Stark.  195),  56. 
v.  Friend  (11  Barn.  &  C.  446),  254, 

303,  311. 
,  Jackson  v.  (1  McCord,  S.  C.  Law, 

288),  340. 

v.  Witt  (39  S.  C.  356),  465. 

Waul  v.  Kirkham  (27  Miss.  823),  345a. 
Way,  Dow   v.  (64  Barb.  N.  Y.  255), 

1176. 

,  Good  title  v.  (1  T.  R.  735),  7. 

,  Wyndham  v.  (4  Taunt.  316),  236. 

Weatherly  v.  Hardman   (68  Ga.  592), 

164. 
Weaver  v.  Aitcheson  (65  Mich.  285), 

122. 

,  Nichols  v.  (1  Kans.  373),  272. 

,  Price   v.  (13   Gray,   Mass.  272), 

505,  509. 

v.  Shipley  (127  Ind.  526),  487. 

,  Sower  v.  (84  Pa.  St.  262),  467. 


Webb  v.  Baltimore  &  E.  S.  R.  R.  (71 

Md.  9:i)t296a. 

,  Clapp  v.  (52  Wise.  638),  204. 

,  Crumley  v.  (48  Mo.  562),  228. 

,  Kirk  v.  (Prec.  Ch.  84),  91,  93,  99. 

,  Norton  v.  (35  Me.  218),  231. 

v.  Paternoster  (Poph.  151),  23. 

,  Prout  v.  (87  Ala.  593),  204,  276a. 

Webber,  Brown  v.  (38  N.  Y.  187),  214a. 

v.  Lee  (L.  R.  9  Q.  B.  315),  26. 

,  Murphy  v.  (61  Me.  478),  138c. 

Weber,  Hastings  v.  (142   Mass.   232), 

345a,  371a. 
Webster  i.-.  Blodgett   (59  N.   H.  120), 

461. 

v.  Brown  (67  Mich.  328),  376. 

v.  Clark  (60  N.  H.  36),  381. 

v.  Ela  (5  N.  H.  540),  373. 

v.  Gray  (37  Mich.  37),  463. 

,  Kelly  v.  (12  C.  B.  283),  117a,451. 

v.  Le  Compte  (74  Md.  249),  116, 

193. 

,  Smith  v.  (3  Ch.  Div.  49),  370. 

v.  Zielly  (52  Barb.  N.  Y.  482),  343. 

Weddall  v.  Capes  (1  Mees.  &  W.  50), 

43,  47. 
Weed   v.   Clark  (4  Sandf.  N.  Y.   31), 

403. 

v.  Terry  (2  Doug.  Mich.  344),  74. 

Weeks,  Blanchard  v.  (34  Vt.  589),  276, 

277. 

v.  Burton  (7  Vt.  67),  181. 

,  Wright  v.  (3  Bosw.  N.  Y.  372), 

382. 
Weil  v.  Schwartz  (21  Mo.  App.  372), 

184a. 
v.   Willard   (55   Mo.   App.   376), 

385. 
Weinman,  Heilman  v.  (139  Pa.  St.  143), 

127. 
Weir  v.  Hill  (2  Lans.  N.  Y.  282),  289. 

,  Hudnut  v.  (100  Ind.  501),  341. 

v.  Hudnut  (115  Ind.  525),  341. 

,  Hudson  v.  (29  Ala.  294),  298. 


Weisel  v.  Spence  (59  Wise.  301),  197, 

200a. 
Welch  v.  Darling  (59  Vt.  136),  118. 

,  Love  v.  (97  N.  C.  200),  365. 

Welcome,  King  v.  (5  Gray,  Mass.  41), 

118,  122a,  131,  277. 
Weld  v.  Nichols  (17  Pick.  Mass.  538), 

159,  188. 
Weldin  v.  Porter  (4  Houst.  Del.  236), 

391,  400. 
Welford  v.  Beazely  (3  Atk.  503),  99. 

v.  Bezeley  (1  Wils.  118),  359. 

Wellborn,  Gwyn  v.  (1  Dev.  &  B.  N.  C. 

Law,  313),  42,  43. 
Weller,  Cox  v.  (6  Thorn  p.  &  C.  N.  Y. 

309),  167. 

Welles,  Parsons  v.  (17  Mass.  419),  65. 
— ,  Thomas  v.  (1   Root,  Conn.  57), 

176. 


TABLE   OF  CASES. 


CX1X 


Wellington  v.  Apthorp  (145  Mass.  69), 

263,  266,  275 
,  Huntington  v.  (12  Mich.  10),  185, 

268. 
Wellman,  Dodge  v.  (1  Abb.  N.  Y.  App. 

Dec.  512),  96a,  441. 
,  McBurney  v.  (42  Barb.  N.  Y.  390), 

441.    ' 
Wells  v.  Bannister  (4  Mass.  514),  119. 

v.  Cowles  (2  Conn.  567),  258. 

,  Drake  v.  (11   Allen,  Mass.  141), 

255. 

,  Henry  v.  (48  Ark.  485),  451. 

v.  Horton  (4  Bing.  40),  275. 

v.  Kingston-upon-Hull   (L.  R.  10 

C.  P.  402),  20. 
,  Lewis  v.  (50  Ala.  198),  376. 

v.  Mayor  (L.  R.   10  C.  P.  402), 

269. 
v.  Monihan  (129  N.  Y.  161),  508. 

v.  Prince  (15  Gray,  Mass.  5(52), 

184. 
v.  Stratton  (1  Tenn.  Ch.  328),  89, 

259,  467. 
Welsh,  Billington  v.  (5  Binn.  Pa.  129), 

465. 

v.  Coley  (82  Ala.  363),  135. 

v.  Kenney  (49  Cal.  49),  1666. 

*'.  Marvin  (36  Mich.  69),  197. 

17.  Usher  (2  Hill,  S.  C.  Ch.  166), 

164. 

17.  Welsh  (5  Ohio,  425),  119. 

Welton  17.  Devine  (20  Barb.  N.  Y.  9), 

92. 

Welz  v.  Rhodius  (87  Ind.  1),  277. 
Wendell,  Jenness  r.  (51  N.  H.  63),  314, 

335. 

v.  Stone  (39  Hun,  N.  Y.  382),  448. 

Wendover  17.  Baker  (25  S.  W  Rep.  Mo. 

918),  229. 
Wengert,  Zimmerman  v.   (31   Pa.  St. 

401),  474. 
Wentworth  r.  Buhler  (3  E.  D.  Smith, 

N.  Y.  305),  451. 

,  Whittemore  c.  (76  Me.  20),  193. 

Wescott,  Mattison  v.  (13  Vt.  258),  307. 
West  17.  Bundy  (78  Mo.  407),  491a. 
,  Dunn  i7.   (5  B.  Mon.  Ky.  376), 

161c. 
,  McGowen  v.  (7  Mo.  569),  1226, 

498. 
,  Maxfleld  v.  (6  Utah,  327),  461. 

17.  O'Hara   (55    Wise.   645),    197, 

199. 
,  Payson  v.   (Walker,  Miss.   615), 

131,  451. 

,  Talver  v.  (Holt,  178),  334. 

Westall,  Smith  ».  (1  Ld.  Raym.  818), 

278. 
Westborough,  Peters  ».  (19  Pick.  Mass. 

364),  281a,  282a. 
Westbrook  v.  Eager  (1  Harr.  N.  J  81), 

256. 


West  Brookfield,  Fullam  v.  (9  Allen, 

Mass.  1),  13. 
Westcott  17.  Keeler  (4  Bosw.  N.  Y.  564), 

165. 
Western  v.  Russell  (3  Ves.  &  B.  187), 

357. 
Western  Union  Tel.  Co.  17.  Chicago  R.  R. 

(86  III.  246),  345a. 
Westfall  v.  Parsons  (16  Barb.  N.  Y.  645), 

169. 
Westmoreland  v.  Carson  (76  Tex.  619), 

864a. 

v.  Porter  (75  Ala.  452),  200a. 

Wetherbee   v.    Potter   (99   Mass.  354), 

117,  122,  150,  26ty. 
,  Trowbridge  v.  (11  Allen,  Mass. 

361),  150,  2616,  26ly. 
Wetherell,  Ex  parte  (11  Ves,  401),  62a. 
Wetmore  v.  White  (2  Caines,  N.  Y.  Cas. 

-    87),  487. 
Wetsell,  Hunter  v.  (17  Hun,  N.  Y.  133), 

342,  343. 

,  Hunter  v.  (57  N.  Y.  375),  343. 

,  Hunter  v.  (84  N.  Y.  549),  342, 343. 

Weyand   v.    Critchfield  (3   Grant,  Pa. 

113),  190o. 
Weyer  v.  Beach  (14  Hun,  N.  Y.  231), 

187. 
Whaley  i:  Bagnel  (1  Bro.  P.  C.  345), 

37 la,  453,  460,  528. 
v.  Hinchman  (22  Mo.   App.  483), 

385. 
v.  Dawson  (2  Schoales  &  L.  367), 

68. 
Wharam,  Matson  v.  (2  T.  R.  80),  163, 

197,  198. 
Wharton,  Hartley  v.  (11  Ad.  &  E.934), 

Appendix,  p.  583. 

,  Martin  17.  (38  Ala.  637),  230. 

,  Ridgway  v.  (6  H.  L.  Cas.  238), 

3466. 
Whatmore,  Rishton  v.  (8  Ch.  Div.  467), 

3466,  351. 
Wheaton,  Gardner  Bank  v.  (8  Greenl. 

Me.  373),  93. 

,  Rogers  v.  (88  Tenn.  666),  38. 

Wheeler,  Bartlett  v.  (44  Barb.  N.  Y. 

162),  283,  289,  290. 
,  Bushel  v.  (15  Q.  B.  442,  note),  315, 

8167,  321,  3276,  332,  333. 

,  Collier  17.  (Moo.  &  M.  123),  373. 

,  Crane  v.  (48  Minn.  207),  165. 

,  Fay  v.  (44  Vt.  292),  293,  296. 

17.  Frankenthal  (78  111.  124),  133, 

460a. 
,  Gwaltney  v.  (26  Ind.  416),  26 lo, 

268. 

17.  Kirtland  (23  N.  J.  Eq.  22),  86. 

t?.  Newton  ('Free.  Ch.  16),  355. 

v.  Reynolds  (66  N.  Y.  227),  448. 

,  Ryerss  v.  (25  Wend.  N.  Y.  434), 

68 
v.  Walden  (17  Neb.  122),  364. 


cxx 


TABLE  OF  CASES. 


Wheeler,  Young  v.  (34  Fed.  Rep.  98) 

261<7. 
Wheelock,  Wood  v.   (25   Barb.  N.  Y 

625),  406. 

Whelan,  Brand  v.  (18  Brad.  111.  App 
Ct.  186),  161c. 

v.  Sullivan  (102  Mass.  204),  385 

450. 
Whetham  v.  Clyde  (Pa.  Leg.  Gaz.  53) 

94. 
Whipple,  Barnard  v.  (29  Vt.  401),  230 

,  Brown  v.  (58  N.  H.  229),  372. 

,  Lapham  v.  (8  Met.  Mass.  59),  278 

283. 

c.  Parkes  (29  Mich.  369),  117, 12(5. 

Whisking,  Bigg  r.  (14  C.  B.  195),  335 
Whisson,  Aveline  v.  (4  Man.  &G.  801), 

7,  9. 
Whistler,  Bryan  v.  (8  Barn.  &  C.  288), 

25. 
Whitaker  v.  Burrows  (71  Hun,  N.  Y 

478),  118. 

•         v.  Cawthorne  (3  Dev.  N.  C.  Law, 
389),  26. 

,  Eaton  v.  (18  Conn.  222),  451,  467. 

Whitamore,  Bedinger  v.  (2  J.  J.  Marsh. 

Ky.  552),  122. 
Whitbeck  Co.,  Mason  K.  (35  Wise.  164), 

330. 
Whitbread  v.  Brockhurst  (1  Bro.  C.  C. 

404),  441,  489,  515,  516. 
Whitcher  n.  Morey  (39  Vt.  459),  133. 
Whitchurch  v.  Bevis  (2  Bro.C.  C.559), 
354,  446,  457,  460,  499,  505«, 
515,  518,  522,  523,  529. 
Whitcomb  v.  Kephart  (50  Pa.  St.  85), 
158. 

,  Lees  17.  (5  Bing.  34),  401. 

White  17.  Bigelow  (154  Mass.  593),  215a, 
346a. 

v.  Carpenter  (2  Paige,  N.  Y.  217), 

86. 

v.  Cleaver  (75  Mich.  17),  117. 

,  Cole  v.  (1   Bro.  C.  C.  409,  note), 

483. 

17.  Coombs  (27  Md.  489),  266. 

v.  Core  (20  \V.  Va.  272),  385. 

v.  Crew  (16  Ga.  416),  471. 

,  Doyle  v.  (26  Me.  341),  195. 

,  Easter  v.  (12  Ohio  St.  219),  161  c. 

v.  Farley  (81  Ala.  563),  264,  369. 

.Field  17.  (L.R.29Ch.D.358),131. 

v.  Foster  (102  Mass.  375),  254c. 

v.  Hanchett  (21  Wise.  415),  276. 

v.  Ingram  (110  Mo.  474),  491a. 

,  Jeakes  v.  (6  Exch.  873),  268. 

,  Lester  v.  (44  111.  464),  228. 

v.  Levy  (93  Ala.  484),  509. 

Long  v.  (42  ().  St.  69),  234. 

v.  Maynard  (111  Mass.  250),  20, 

37a. 

v.  O'Bannon  (86  Ky.  93),  71. 

17.  Proitor  (4  Taunt.  209),  369. 


White  17.  Rintoul  (108  N.  Y  222),  212 

214a. 

,  Scott  v.  (71  111.  287),  204. 

17.  Solomonsky  (80  Md.  685),  193. 

v.  Spreckels  (75  Cal.  610),  75. 

,  Thomson  v.  (1  Dall.  Pa.  424),  442 

,  Union  Insurance  Co.  v.  (106  111. 

67),  441. 
,  Wetmore  r.  (2  Caines,  N.  Y.  Cas. 

87),  487. 

17.  White  (1  Harr.  N.  J.  202),  230. 

v.  Wieland  (109  Mass.  291),  119. 

v.  Woodward  (5  C.  B.  810),  405. 


Whiteacre  v.  Symunds  (10  East,  13),  20. 
Whitehead  v    Carr  (5  Watts,  Pa.  368), 

226. 

r.  Clifford  (5  Taunt.  518),  45. 

Whitehouse,   Hinde   v.   (7    East,    558), 

293,  334,  348,  351,  369. 
Whitehurst  v.  Hyman  (90  N.  C.  487), 

205. 
Whiteing,  Hollis  v.  (1  Vern.  151),  446, 

625. 

Whitesell  v.  Heiney  (58  In d.  108),  188. 
Whiting  v.  Butler  (29  Mich.  122),  229. 

v.  Gould  (2  Wise.  552),  95,  507o. 

,  McKinney  v.  (8  Allen,  Mass.  207), 

184. 

v.  Ohlert  (52  Mich.  462),  272. 

,  Stone  17.  (2  Stark.  235),  53,  65. 

Whitley,  Leman  v.  (4  Russ.  423),  95, 

111. 

,  Railway  Co.  v.  (54  Ark  199),  276. 

Whitman  v.  Bryant  (49  Vt.  612),  197 

,  Sheley  v.  (67  Mich.  397),  371. 

Whitmarch  v.  Walker  (1  Met.  Mass. 

313),  27,  245,  255. 
Whitmore,  Flemm  v.  (23  Mo.  430),  159, 

188. 
,  Skett  y.  (Freem.  Ch.  280),  82,  93, 

461. 
Whitney,  Cary  v.  (48  Me.  526),  74a. 

v.  Cochran  (1  Scam.  111.  209),  125. 

,  Hibbard  r.  (13  Vt.  21),  117. 

v.  Holmes  (15  Mass.  152),  75. 

.Murnford  v.  (15  Wend.  N.  Y.  380), 

28. 
,  Murphy  v.  (69  Hun,  N.  Y.  573), 

463. 

-,  Murphy  v.  (140  N.  Y.  541),  463. 
-,  Wagonblast  v.  (12  Ore.  83),  493. 
Whitridge   v.  Parkhurst  (20  Md.  62), 

439. 

Whitsett  i7.  Kershow  (4  Col.  419),  91. 
Whitsitt     v.     Trustees     Presbyterian 

Church  (110  111.  125),  465. 
Whittemore  v.  Gibbs  (24  N.  H.  484),  38, 
65,  231,  298. 

v.  Wentworth  (76  Me.  20),  193 

Whittieri).  Dana  (10  Allen,  Mass.  326), 

411,  424. 

-,  Rowe  v.  (21  Me.  545),  1666. 
Whitton  17.  Russell  (1  Ark.  448),  94. 


TABLE   OF   CASES. 


CXXJ 


Whit  well  v.  Wyer  (11  Mass.  6),  335. 
Whitworth  v.  Gaugain  (3  Hare,  416), 

62. 
Wible  v.  VVible  (1  Grant,  Pa.  406),  226, 

465. 
Wick,  Crawford  v.  (18  Ohio  St.  190), 

20. 
Wickham   v.  Wickhara   (2   Kay  &  J. 

478),  213. 
Wiebeler  v.   Milwaukee  Ins.  Co.  (30 

Minn.  464),  275. 
Wiebracht,   Mueller   v.   (47  Mo.  468), 

138c. 

Wieland,  White  i>.  (109  Mass.  291),  119. 
Wier  v.  Batdorf  ('24  Neb.  83),  354. 
Wiggin  v.  Wiggin  (58  N.  H.  235),  467. 
Wiggins,  Bayne  v.  (139  U.  S.  210),  348. 

,  Cheesman  v.  (122  Ind.  352),  161. 

v.  Keizer  (6  Ind.  252),  276. 

Ferry  Co.,  National  Stock  Yards  v. 

(112111.  384),  31. 
Wightwick,  Fereday  v.  (I  Russ.  &  M. 

45),  25'J,  260. 
Wilber,  Burke  r.  (42  Mich.  327),  108. 

v.  Sisson  (55  Barb.  N.  Y.  258),  20. 

Wilbur  v.  Johnson  (58  Mo.  600),  215. 
Wilcox,  Burr  v.  (13  Allen,  Mass.  269), 

200(7,  204. 

,  Dillaby  v.  (60  Conn.  71),  203, 214e. 

,  Sage  v.   (6  Conn.  81),  166,  190, 

391,  395. 
v.  Wilcox  (13  Allen,  Mass.  252), 

259. 

,  Wise  w.  (1  Day,  Conn.  22),  181. 

i;.  Wood  (9  Wend.  N.  Y.  346),  36. 

,  Woodward  v.  (27  Ind.  207),  206, 

214e. 
Wilcox  Silver  Plate  Co.  v.  Green  (72 

N.  Y.  18),  136, 316a,  316.7,  327a. 
Wilde  v.  Fox  (1  Rand.  Va.  165),  476, 

479. 
Wilder,  Doty  v.  (15  111.  407),  369. 

,  Howe  v.  (11  Gray,  Mass.  267),  60. 

Wildes  17.  Dudlow  (L.  R.  19  Eq.  198), 

1616,  162. 
Wiley  t7.  Bradley  (60  Ind.  62),  119. 

v.  Robert  (27  Mo.  388),  348. 

Wilhelm  v.  Hardman  (13  Md.  140),  27R. 
Wilkes,  Coombs  v.  (L.  R.  3Ch.  D.  1891, 

77),  3466,  372. 
17.  Ferris  (5  Johns.  N.  Y.  335),  318, 

819a. 
,  Redding  ».  (3  Bro.  C.  C.  400), 

459,  460,  507. 
Wilkins,  Hogg  v.  (1  Grant,  Pa.  67),  95, 

229 
Wilkinson  v.  Evans  (L.R.  1  C.  P.  407), 

138e,  3466,  348,  354a. 

v.  Heavenrich  (58  Mich.  574),  364. 

,  Johnson  17.  (139  Mass.  3),  20. 

,  Norris  v.  (12  Ves.  102),  62. 

,  Prentice  c.  (5  Abb  N.  Y.  Pr.  N.  8. 

49),  156. 


Wilkinson  v.  Scott  (17  Mass.  249),  465. 
«7.  Wilkinson  (1  Desaus.  S.  C.  Ch. 

201),  487. 
,  Wilkinson's  Admr.  v.  (61  Vt.  409), 

336. 
Wilkinson's   Admr.   v.  Wilkinson   (61 

Vt.  409),  336. 
Wilks  17.  Atkinson  (6  Taunt.  12),  303. 

17.  Back  (2  East,  142),  13. 

Willard  v.  Bosshard   (68  Wise.  454), 

187. 

,  Gifford  t7.  (55  Vt.  36),  118. 

,  Jackson  v.  (4  Johns.  N.  Y.41),65. 

,  Weil  v.  (55  Mo.  App.  376),  385. 

Wm.  Butcher  Works  v.  Atkinson  (68 

111.  421),  126. 
Williams,    Ex  parts   (4   Yerg.   Tenn. 

679),  163,  197. 
Williams,  Abell  v.  (3  Daly,  N.  Y  17), 

51. 
v.  Bacon  (2  Gray,  Mass.  387),  344, 

352a,  353,  364,  37  la,  373. 
,  Baldwin   v.  (3  Met.  Mass.  365), 

297. 
,  Bees  i?.  (2  Cromp.  M.  &  R.  581), 

64. 
v.  Bemis  (108  Mass.  91),  118,  119, 

126. 
,  Bloxsome  v.  (3  Barn.  &  C.  232), 

1386. 

,  Bozon  v.  (3  Younge  &  J  150),  62. 

,  Brettel  v.  (4  Exch.  623),  345a. 

v.  Brown  (14  111.  200),  84. 

w.  Burgess  (10  Ad.  &  E.  499),  29£ 

17.  Byrnes  (8  L.  T.  N.  s.  69),  373. 

v.  Caldwell  (4  S.  C.  100),  174. 

,  Carr  v.  (17  Kans.  675),  229. 

,  Caruthers  v.  (21  Fla.  485),  96. 

,  Colvin  v.  (3  Harr.  &  J.  Md.  38). 

296a. 
,  Conner  v.  (2  Rob.  N.  Y.  46),  1666. 

2146. 

,  Cope  v.  (4  Ala.  362),  121. 

17.  County  of  San  Saba  (59  Texas, 

442),  89. 
,    Cunningham   v.   (43   Mo.   App. 

629),  354a. 
.Dayton   v.  (2   Doug.   Mich.   31), 

605. 
,  Denny  r.  (5  Allen,  Mass.  1),  136, 

321. 

v.  Evans  (39  Mo.  201),  319a,  321. 

t7.  Haskins  Est.  (29  Atl.  Rep.  Vt. 

371),  82. 

17.  Hill  (19  How.  U.  S.  246),  207. 

v.  Hollingsworth  (1  Strobh.  S  C. 

Eq.  103  >,  93. 

,  Hutton  17.  (36  Ala.  603),  265,  369. 

,  James  r.  (5  Barn.  &  Ad.  1109), 

388,  404. 

,  Jones  r.  (24  Bear.  55),  62«. 

v.  Jordan  (0  Ch.  Div.  517),  3466, 

373. 


CXX11 


TABLE   OF   CASES. 


Williams  v.  Ketchum  (19  Wise.  231), 

400. 

,  Keys  v.  (3  Younge  &  C  55),  62. 

,  Kirk  v.  (24  Fed.  Rep.  437),  117. 

,  Koch  17.  (82  Wise.  186),  118. 

v.  Lake  (2  El.  &  E.  349),  372. 

v.  Land  man  (8  Watts  &  S.  Pa.  55), 

479. 
17.  Leper  (3  Burr.  1886),  205,  206, 

505a., 

77.  Little  (35  Me.  323),  1666. 

,  Lessee  v.  (6  Lans.  N.  Y.  228),  165. 

,  Lysle  v.  (15  Serg.  &  R.  Pa.  135), 

36. 
v.  Mason  (28  Law,  T.  N.  S.  232), 

370c. 
v.  Morris  (95  U.  S.  444),  346,  3466, 

37 la,  376,  384,  385,  448,  452, 

457,  493. 

17.  Morris  (8  Mees.  &  W.  488),  24. 

,  Peck  v.  (113  Ind.  256),  130. 

K.  Pope  (Wright,  Ohio,  406),  465. 

,  Pyke  v.  (2  Vern.  455),  471. 

,  Riley  v.  (123  Mass.  506),  385. 

v.  Robinson    (73  Me.  186),  3466, 

391. 

v.  Rogers  (14  Bush,  Ky.  776),  188. 

v.  Sawyer  (3  Brod.  &  B.  70),  47. 

v.  Smith  (37  N.  E.  Rep.  Mass.  455), 

371a. 
,  Thomas  v.  (10  Barn.  &  C.  664), 

146. 

,  Thornton  v.  (71  Ala.  555),  175. 

,  Underhill  v.  (1  Blackf.  Ind.  125), 

448,  469,  487. 

,  Wardell  v.  (62  Mich.  50),  3456. 

,  Warring  v.  (8  Pick.  Mass.  326), 

14fl. 
v.  Williams  (7  Reporter,  656),  229, 

493. 

,  Winner  v.  (62  Mich.  363),  138/: 

Williamson  ?;.  Hill  (3  Mackey,  D.  of  C. 

100),  204. 

,  Luckett  v.  (37  Mo.  388),  515. 

Williamston  R.  R.  v.  Battle  (66  N.  C. 

540),  31. 
Willis  v.  Evars  (2  Ball  &  B.  225),  501. 

v.  Willis  (2  Atk.  71),  91. 

Willoughby,  In  re  (11  Paige,  N.  Y.  Ch. 

257),  215a. 
,  Warner  v.  (60  Conn.  468),  203, 

214e. 
Wills  v.  Brown  (118  Mass.  137),  200«. 

v.  Ross  (77  Ind.  1),  197,  348,  375. 

17.  Shinn  (42  N.  J.  Law,  138),  174. 

v.  Stradling  (3  Ves.  Jr.  378),  476, 

479. 
Willson,  Donovan  v.  (26  Barb.  N.  Y. 

138),  302. 

,  Packer  v.  (15  Wend.  343),  405. 

Wilmer  v.  Farris  (40  Iowa,  309),  476. 
Wilmoth,  Fisher  17.  (68  Ind.  449),  204. 
Wilson  r.  Abbott  (3  Barn.  &  C.  88),  38. 


Wilson,  Alford  v.  (26  S.  W.  Rep.  Ky. 

539),  354,  441a. 

t7.  Beddard  (12  Sim.  28),  355a. 

,  Burt  17.  (28  Cal.  632),  498,  515. 

17.  Chalfant  (15  Ohio,  248),  29. 

v.  Clarke  (I  Watts  &  S.  Pa.  554), 

226. 

v.  Coleman  (81  Ga.  297),  380. 

,  Day  17.  (83  Ind.  463),  122. 

v.  Dent  (3  Sim.  385),  97. 

,  Espalla  v.  (86  Ala.  487),  172. 

,  Parish  v.  (Peake,  73),  190. 

,  Findley  17.  (3  Litt.  Ky.  390),  119. 


v.  Foreman  (2  Dick  593),  90. 

i'.  Hart  (7  Taunt.  295),  364. 

,  Hanlon  v.  (10  Neb.  138),  467. 

,  Hazeltine  v.  (55  N.  J.  Law,  250), 

199. 

,  Hentges  (29  Minn.  102),  165. 

,  Jar  vis  r.  (8  Reporter,  264),  174. 

,  Johnson  r.  (Willes,  248),  68. 

,  King  v.  (2  Stra.  873),  212. 

v.  Lester  (64  Barb.  N.  Y.  431),  56. 

v.  Lewiston    Mill    Co.    (74    Hun, 

N.  Y.  612),  3466. 
v.  Martin  (1  Denio,  N.  Y.  602),  20, 

272. 

,  Mason  v.  (84  N.  C  51),  187. 

v.  Miller  (42   111.   App.  Ct.  332), 

136,  348. 

,  Miller  v.  (146  111.  523),  136,  535. 

17.  Morton  (85  Cal.  598),  135. 

v.  Ray  (13  Ind.  1),  289,  446. 

,  Raynor  v.  (6  Hill,  N.  Y.  469),  60. 

,  Ryan  v.  (56  Tex.  36),  483. 

,  Sayre  v.  (86  Ala,  151),  269. 

v.  Sewell  (4  Burr.  1975),  48,  49. 

,  Sloan  v.  (4  Harr.  &  J.  Md.  322), 

391. 

,  Stark  v.  (3  Bibb,  Ky.  476),  269. 

,  Thomson  v.  (2   Stark.    379),   45, 

55. 
v.  Troup  (2  Cowen,  N.   Y.   195), 

165. 

t7.  Vass  (54  Mo.  App.  221),  165. 

Wilstach  v.  Heyd  (122  Ind.  574),  3466. 
Wilton  v.  Harwood  (23  Me.  131),  449, 

487. 
Wiman,   Bronson  v.  (10  Barb.  N.   Y. 

406),  302,  303,  306. 
Wimbledon   Board,  Hunt   v.  (4  C.  P. 

Div.  48),  467. 
Wimple,  Van  Allstine  v.  (5  N.  Y.  162), 

150,  152. 
Winchester,  Hammond  v.  (82  Ala.  470), 

28. 
,  Wolcott  17.  (15  Gray,  Mass.  464), 

65. 

Winckworth  v.  Mills  (2  Esp.  484),  ]f.O. 
Windell  v.  Hudson  (102  Ind.  521),  188 
Wingard  v.  Tift  (24  Ga.  179),  31. 
Wingate  v.  Dail  (2  Harr.  &  J.  Md.  276), 

493. 


TABLE  OF  CASES. 


CXX1U 


Wingerter,  Culligan  v.  (57   Mo.  241), 

134. 
Wingfiel.l,  Home  v.  (3  Scott,  N.  R.  340), 

428. 
Winn  v.  Albert  (2  Md.  Cli.  Dec.  169), 

223,  498,  615. 
,  Albert  v.   (5  Md.  66),  224,  498, 

516. 

v.  Bull  (7  Ch.  Div.  29),  371u. 

v.  Henry  (84  Ky.  48),  365,  385. 

v.  Hilyer  (43  Mo.  App.  139),  171, 

212,  2l4a. 
,  Stephens  v.  (2  Nott.  &  McC.  S.  C. 

Law,  372,  note),  391. 
Winner  v.   Williams    (62  Mich.   363), 

138/. 
Winona    Lumber   Co.,  Evans    v.    (30 

Minn.  515),  38. 
Winship  v.  Buzzard  (9  Rich.  S.  C.  Law, 

103),  308. 

,  Pomeroy  v.  (12  Mass.  513),  229. 

Winslow,   Codman  v.   (10  Mass.  146), 

74a. 

v.  Dakota  Co.  (32  Minn.  237),  198. 

Winter  v.  Brockwell  (8  East,  308),  25, 

27o. 
Winters  v.  Cherry  (78  Mo.  344),  117, 

285. 
,  Lower  v.  (7  Cowen,  N.  Y.  263), 

231,  233, 283. 
Wisconsin   R.  R.  Co.,   Russell  v.    (39 

Minn.  145),  310. 
Wisconsin  Co.,  Watt  v.  (63  Iowa,  730), 

385. 
Wise,  Barnes  v.  (3  T.  B.  Mon.  Ky.  167), 

1226,  123. 

v.  Ray  (3  Iowa,  430),  357. 

v.  Wilcox  (1  Day,  Conn.  22),  181. 

Wiseheart,  Hendrick  v.  (57  Ind.  129), 

164. 

Wiser  v.  Allen  (92  Pa.  St.  317),  92. 
Wiskamp,  Habbermann  v.  (54  111.  179), 

1666. 
Wiswell,  Baker  v.  (17  Neb.  52),  462. 

v.  Tefft  (5  Kans.  156),  511. 

Withers  v.  Larrabee  (48  Me.  670),  38. 
Witlirow,  Allen  r.  (110  U.  S.  119),  126. 
Witt,  Watts  v.  (39  S.  C.  356),  465. 
Witter,  Gottschalk  v.  (25  Ohio  St.  76), 

2826 
Wolcott  v.  Winchester  (15  Gray,  Mass. 

464),  65. 
Woldridge  u.  Stern  (42  Fed.  Rep.  311), 

282a. 
Wolf  v.  Dozer  (22  Kans.  *436),  272. 

,  Duct-It  ».  (81  Mich.  311),  117. 

,  Grant  v.  (34  Minn.  82),  198. 

r.  Wolf  (158  Pa.  St.  621),  70. 

Wolfe,  American   Lead   Pencil   Co.  ». 
(30  Fla.  360),  187. 

v.  Frost  (4  Sandf.  N.  Y.  Ch.  72), 

269,  488. 
,  Nugent  v.  (Ill  Pa.  St.  471),  161c. 


Wolfe  v.  Sharp  (10  Rich.  S.  C.  Law, 

60),  264,  265. 
Wolff  v.  Koppel  (5  Hill,  N.  Y.  458),  202, 

213. 
Wolford  v.  Herrington  (86  Pa.  St.  39), 

94a,  96a. 
v.  Herrington  (74  Pa.  St.  311),  94, 

94a. 
-,  Snyder  v.  (33  Minn.   176),  269, 

367. 
Wolfstein,  Heideman  v,  (12  Mo.  App. 

366),  352u,  364a,  380. 
Wolke  v.  Fleming  (103  Ind.  105),  272. 
Wollner,  Horton  v.  (71  Ala.  452),  385. 
Wonsettler  v.  Lee  (-10  Kans.  367),  118. 
Wood  v.  Benson   (2  Cromp.  &  J.  94), 

143,  148,  405. 

—  t;.  Corcoran  (1  Allen,  Mass.  40o), 

193. 

—  v.  Davis  (82  111.  311),  354«,  3546. 

,  Deshon  v  (148  Mass.  132),  131. 

,  Ebert  v.  (1  Binn.  Pa.  216),  74,  467. 

v.  Edes  (2  Allen,  Mass.  678),  27a. 

,  Fehlinger  v.   (134  Pa.  St.  617), 

188. 

v.  Fleet  (36  N.  Y.  499),  68,  72. 

v.  Goodridge  (6  Cush.  Mass.  117), 

9,13. 

,  Hall  v.  (4  Chand.  Wise.  36),  197. 

,  Jackson  v.  (12  Johns.  N.  Y.  73),  6. 

v.  Jones  (35  Tex.  64),  461. 

,  Keyes  v.  (21  Vt.  331),  65. 

v.  Lake  (Sayer,  3),  23. 

v.  Leadbitter  (13  Mees.  &  W.  838), 

23,  24. 

,  Lewis  v.  (153  Mass.  321),  373. 

v.  Manley  (11  Ad.  &  E.  34),  25,  27, 

245. 
v.  Midgley  (5  De  G.  M.  &  G.  41), 

3466,  360,  446,  607. 

—  Moorman  v.  (117  Ind.  144),  267. 

—  v.  Moriarty  (15  R.  I.  618),  166a, 

188. 

v.  Partridge  (11  Mass.  488),  42. 

v.  Rabe  (96  N.  Y.  414),  96. 

v.  Savage  (2  Doug.  Mich.  316), 

223. 

v.   Shultis    (4   Hun,  N.  Y.  309), 

257. 

v.  Thornly  (58  111.  464),  488. 

,  Tierney  v.   (19  Beav.  330),  106, 

107. 
v.  Wheelock  (25  Barb.  N.  Y.  625), 

406. 
,  Wilcox  v.  (9  Wend    N.  Y.  346), 

36. 

,  Wynn  «.  (97  Pa.  St.  216),  1666. 

Woodbury  r.  Parshley  (7  N.  H.  237), 

28. 
Woodcock  v.  Nuth  (8  Binp.  170),  66. 

,  Shaw  v.  (7  Barn.  &  C.  78),  116. 

Woodford  v.  Patterson  (32  Barb.  N.  Y. 

630),  293. 


CXX1V 


TABLE   OF   CASES. 


Woodhull  v.  Longstreet  (3  Harr.  N.  J. 

405),  71. 

Woodman,  Hill  v.  (14  Me.  38),  7. 
Woodruff,  Fitzpatrick  v.  (96  N.  Y.  561), 

293. 
,  Fitzsimmons  v.  (1  Thorap.  &  C. 

N.  Y.  3),  316c,  316rf. 

v.  Scaife  (83  Ala.  152),  187. 

Woods,  Crawford  v.  (Q  Bush,  Ky.  200), 

135. 

v.  Dille  (11  Ohio,  455),  498. 

v.  Farmare  (10  Watts,  Pa.   195), 

465,  467. 

,  Hart  v.  (7  Blackf .  Ind.  568),  369. 

,  Lawrence  v.  (4  Bosw.  N.  Y.  354), 

283. 

v.  Wallace  (22  Pa.  St.  171),  267. 

Woodson,  Bowles  v.  (6  Grat.  Va.  78), 

354. 
,  Chiles  v.   (2  Bibb,  Ky.  71),  80, 

263a. 
Woodward,  Grafton  Bank  v.  (5  N.  H. 

99),  411. 

,  Pierce  v.  (6  Pick.  Mass.  206),  143. 

o.  Seeley  (11  111.  157),  28 

,  Vaupell  v.   (2   Sandf.  N.  Y.  Ch. 

143),  258. 

,  White  v.  (5  C.  B.  810),  405. 

».  Wilcox  (27  Ind.  207),  206,  214e. 

Woodworth,  Brown  v.  (5  Barb.  N.  Y. 

550),  28. 
Wooldridge  v.  Hancock  (70  Tex.  18), 

474. 

,  Heth  v.  (6  Rand.  Va.  605),  270. 

Wooley,  Christenson  v.  (41  Mo.  App. 

53),  3466. 

,  Slocum  v.  (43  N.  J.  Eq.  451),  271. 

Wooster  v.  Sage  (6  Him,  N.  Y.  285), 

293. 

Wooten,  Floumoy  v.  (71  Ga.  168),  199. 
Worden  v.  Crist  (106  111.  326),  267. 

v.  Sharp  (56  111.  104),  117. 

Work  v.  Cowhick  (81   111.  317),  136, 

348,  3546. 

Worley  v.  Sipe«(lll  Ind.  238),  117,272. 
Wormald,  Cooper  v.  (27   Beav.  266), 

224a. 

Wormser,  Porter  v.  (94  N.  Y.  431),  508. 
Worrall  v.  Munn  (5  N.  Y.  229),  355, 

365,  370«. 

,  Nelson  v.  (20  Iowa,  469),  445a. 

Worth  v.  Patton  (5  Ind.  App.  Ct.  272), 

118. 

Worthen,  Dow  v.  (37  Vt.  108),  342a. 
Worthington,  Carter  v.  (82  Ala.  334), 

223. 
Worthy  v.  Jones  (11  Gray,  Mass.  168), 

277. 

Wray  v.  Steele  (2  Ves.  &  B.  388),  85. 
Wren  v.  Pearce  (4  Sraedes  &  M.  Miss. 

91),  391. 

Wright,  Birch  v.  (1  T.  R.  378),  35. 
,  Clerk  v.  (1  Atk.  12),  376,  460. 


Wright  ».  Cobb  (5  Sneed,  Tenn   143), 

354a,  376. 

,  Cole  v.  (70  Ind.  179),  272. 

v.  Dannah  (2   Camp.  203),   367, 

370a. 

v.  De  Groff  (14  Mich.  164),  230. 

,  Dickinson  v.  (56  Mich.  42),  12. 

v.  Douglass  (7  N.  Y.  564),  97,  98, 

99,  104. 
o.  Freeman  (5  Harr.  &  J.  Md.  467), 

29. 

v.  Gay  (101  111.  233),  96. 

,  Lamar  v.  (31  S.  C.  60),  263«. 

,  Lincoln  v.  (4  De  G.  &  J.  16),  479. 

,  M'Comb  v.  (4  Johns.  N.  Y.  Ch. 

659),  369. 
v.  Percival  (8  L.  J.  Q.  B.  N.  s.  258), 

316u. 
v.  Puckett  (22  Grat.  Va.  370),  452, 

493. 

o.  Smith  (81  Va.  777),  187,  214c. 

v.  State  (79  Ala.  262),  187. 

».  Stavert  (12  El.  &  E.  721),  20, 

37a,  230. 

v.  Wakeford  (17  Ves.  459),  355. 

v.  Weeks  (3  Bosw.  N.  Y.  372),  382. 


Wulschner  v.  Ward  (115  Ind.  219),  293a. 
Wunsch,  Duffy  v.  (42  N.  Y.  243),  157. 
Wyatt,  Rondeau  v.  (2  H.  Bl.  63),  293, 

498,  515. 

Wyer,  Whit  well  v.  (11  Mass.  6),  335. 
Wylie  v.  Kelly  (41  Barb.  N.  Y.  594). 

320,  321. 
Wylson  v.  Dunn  (L.  R.  34  Ch.  D.  569), 

3466. 
Wyman,  Babcock   v.  (19   How.  U.  S. 

289),  445a. 

v.  Goodrich  (26  Wise.  21),  165. 

v.  Gray,  (7  Harr.  &  J.  Md.  409), 

164,  391. 
,  Larson  v.  (14  Wend.  N.  Y.  246), 

191,  197,  198. 

v.  Smith  (2  Sandf.  N.  Y.  331),  187. 

Wyndham  v.  Way  (4  Taunt.  316),  236. 
Wynn  v.  Garland  (19  Ark.  23),  511. 
,  Royland  v.  (1  Sel.  Cas.  Ala.  270), 

212 
v.  Wood  (97  Pa.  St.  216),  1666. 


Y. 

Yale  v.  Edgerton  (14  Minn.  194),  193. 

v.  Seeley  (15  Vt.  221),  251. 

Yates,  Clay  v.  (1  Hurlst.  &  N.  73),  308. 
v.  Martin  (1  Chand.  Wise.  118), 

266. 
Yawger,  Freeh  v.  (47  N.  J.  Law,  157), 

406. 

Yeager  v.  Kelsey  (46  Minn.  402),  135. 
Yeakle  v.  Jacob  (33  Pa.  St.  376),  28. 
Yeaton,  Patterson  v.  (47  Me.  308),  60, 

449. 


TABLE  OF  CASES. 


CXXV 


Yeilding,  Harriett  v.  (2  Schoales  &  L. 

649),  385,  492. 
Yerby  v.  Grigsby  (9  Leigh,  Va.  387), 

357,  370a. 

Yerger,  Miazza  v.  (53  Miss.  135),  96. 
Yesler,  Rochester  v.  (0  Wash.  Nev.  116), 

483. 

Yocum,  Smith  v.  (110  111.  142),  465. 
York,  Mead  v.  (6  N.  Y.  449),  267. 

,  Roe  v.  (6  East,  86),  43,  44,  49. 

Youlan,  Kenyon  ».  (53  Hun,  N.  Y.  692), 

463. 

Young,  Aitken  v.  (12  Pa.  St.  15),  476. 
v.  Austen  (L.  R.  4  C.  P.  653),  605a, 

506. 
,  Barkworth  v.   (4  Drew.  1),  344, 

505a,  507. 

v.  Blaisdell  (60  Me.  272),  138/ 

v.  Brown  (53  Wise.  333),  400. 

,  Chesapeake  Co.  v.  (3  Md.  480), 

456,  493. 
v.  Dake  (5  N.  Y.  463),  34,  37,  230, 

272. 
,  Drury  v.  (58  Md.  646),  344,  354, 

356. 
v.  French   (35  Wise.  Ill),  200a, 

204. 

v.  Frost  (1  Md.  377),  74. 

v.  Glendenning  (6  Watts,  Pa.  509), 

467. 

,  Hall  v.  (37  N.  H.  134),  86. 

,  Harris  v.  (40  Ga.  65),  1666,  193. 

,  Hartwell  v.  (67  Hun,  N.  Y.  472), 

118. 
v.  Miller  (6  Gray,  Mass.  152),  65. 


Young  v.  Overbaugh  (76  Hun,  N.  Y. 

151),  487. 

v.  Peachy  (2  Atk.  254),  91. 

,  Preston  v.  (46  Mich.  103),  214o. 

,  Ray  v.  (13  Tex.  550),  124. 

,  Vliet  v.  (34  N.  J.  Eq.  15),  267. 

v.  Wheeler  (34  Fed.  Rep.  98),261</. 

v.  Young  (45  N.  J.  Eq.  27),   487, 

491a. 
Youngbluth,   McDonald    v.    (46    Fed. 

Rep.  836),  44  Id,  444a. 
Youngeniiin,  Bates  v.  (142  Mass.  120), 

184. 


Z. 

Zabel  v.  Schroeder  (35  Tex.  308),  289. 
Zachrisson  v.  Pope  (3  Bosw.  N.  Y.  171), 

319a. 
Zeh,  Artcher  v.  (5  Hill,  N.  Y.  200),  275, 

278,  341,  342. 
Zeitinger,  Hackworth  v.  (48  Mo.  App. 

32),  508. 

Zell,  Benjamin  ?-.  (100  Pa.  St.  33),  269. 
Zickafosse  v.  Hulick  (1  Morris,  Iowa, 

175),  233. 
Zielly,  Webster  v.  (52  Barb.  N.  Y.  482), 

343. 
Zimmerman,  Bender  v.  (26  S  W.  Rep. 

Mo.  973),  441a. 

v.  Wengert  (31  Pa.  St.  401),  474. 

Zingsen,  Meriden  Britannia  Co.  v.  (48 

N.  Y.  247),  167. 
Zufall,  Miller  v.  (113  Pa.  St.  317),  474. 


PART    L 

THE  CREATION  AND  TRANSFER  OF 
ESTATES  IN  LAND. 


STATUTE  29  CAR.  II.  c.  3. 

THE   FIRST   THREE   SECTIONS;     BEING   SUCH   AS   AFFECT    THE    CREATION 
AND    TRANSFER    OF    ESTATES    IN    LAND. 

SECTION  1.  All  leases,  estates,  interests  of  freehold  or  terms  of  years, 
or  any  uncertain  interest  of,  in,  or  out  of  any  messuages,  manors,  lands, 
tenements,  or  hereditaments,  made  or  created  by  livery  and  seisin  only  or 
by  parol,  and  not  put  in  writing  and  signed  by  the  parties  so  making  or 
creating  the  same,  or  their  agents  thereunto  lawfully  authorized  by  writ- 
ing, shall  have  the  force  and  effect  of  leases  or  estates  at  will  only,  and 
shall  not,  either  in  law  or  equity,  be  deemed  or  taken  to  have  any  other  or 
greater  force  or  effect ;  any  consideration  for  making  any  such  parol  leases 
or  estates,  or  any  former  law  or  usage,  to  the  contrary  notwithstanding. 

SECTION  2.  Except  nevertheless,  all  leases  not  exceeding  the  term  of 
three  years  from  the  making  thereof,  whereupon  the  rent  reserved  to  the 
landlord  during  such  term,  shall  amount  to  two-third  parts  at  the  least  of 
the  full  improved  value  of  the  thing  demised. 

SECTION  3.  And,  moreover,  that  no  leases,  estates,  or  interests,  either 
of  freehold  or  terms  of  years,  or  any  uncertain  interest,  not  being  copy- 
hold or  customary  interest,  of,  in,  to,  or  out  of  any  messuages,  manors, 
lands,  tenements,  or  hereditaments,  shall  be  assigned,  granted,  or  surren- 
dered, unless  it  be  by  deed  or  note  in  writing  signed  by  the  party  so 
assigning,  granting,  or  surrendering  the  same,  or  their  agents  thereunto 
lawfully  authorized  by  writing,  or  by  act  and  operation  of  law. 


TREATISE 


ON   THE 


STATUTE   OF    FRAUDS. 


CHAPTER  I. 

FORMALITIES   FOR   CONVEYING   ESTATES  IN   LAND. 

§  1.  THE  Statute  of  Frauds  found  the  law  of  England  in 
regard  to  the  alienation  of  corporeal  interests  in  land  in  a 
singularly  unsettled  condition.  The  ancient  investitura  pro- 
pria,  or  actual  delivery  of  the  land  by  the  donor  to  the  vassal, 
which  was  practised  in  early  feudal  times,  had  been  accom- 
panied by  such  solemnities  in  the  presence  of  chosen  wit- 
nesses as  gave  the  highest  notoriety  to  the  transaction  and 
secured  ample  evidence  of  it.  This  was  properly  that  livery 
of  seisin  which  is  mentioned  in  the  first  section  of  the  Statute 
of  Frauds,  and  it  may  be  supposed  that  if  it  had  been  pre- 
served in  its  original  strictness  and  formality,  the  policy  of 
the  statute  would  not  have  demanded  the  substitution  of  any 
other  ceremony.  But  the  diffusion  of  landed  property  among 
the  middle  classes,  and  the  extension  of  commercial  inter- 
course between  men,  soon  brought  about  infringement  upon 
the  ancient  practice.  The  lord  delegated  the  investiture  of 
his  tenant  to  the  attorney  or  steward,  and  the  attestation  of 
common  witnesses,  instead  of  the  pares  curies  of  the  particular 
manor,  was  received.  Other  relaxations  of  the  ancient  form 
followed,  until  there  remained  scarcely  a  vestige  of  the  ori- 


4  STATUTE   OF  FKAUDS.  [CH.   L 

ginal  ceremony.  It  had  always  been  customary  to  make  a 
brief  written  record  of  the  investiture,  and  as  the  old  formal- 
ities of  the  parol  transfer  fell  into  disuse,  this  record  grew 
more  elaborate,  and  finally  came  to  be  the  sole  resort  for  evi- 
dence of  the  transaction.  Still,  it  was  never  indispensable, 
and  down  to  the  time  when  the  Statute  of  Frauds  was  en- 
acted, land  could  be  transferred  by  parol  with  livery  of  seisin, 
loose  and  informal  as  that  ceremony  had  then  become,  and 
consequently  great  danger  was  incurred  of  such  transfers 
being  attempted  to  be  proved  by  false  and  fraudulent  means. 
By  this  statute  it  was  finally  made  essential  to  the  convey- 
ance of  estates  in  land  (with  an  exception  to  be  hereafter 
noticed),  that  it  should  be  by  writing  signed  by  the  party  or 
his  agent;  and  all  estates  created  "by  livery  of  seisin  only 
and  by  parol  "  were  declared  to  possess  no  greater  force  or 
effect  than  estates  at  will.  The  statute  made  no  provision, 
however,  for  the  registration  of  the  written  conveyances, 
which  omission  doubtless  left  open  a  wide  field  for  fraud,  and 
was  not  cured  in  England  till  some  years  after,  when  record- 
ing acts  were  passed. 

§  2.  It  will  be  observed  that  the  operation  of  the  statute 
is  confined  to  such  interests  in  land  as  could  formerly  be  con- 
veyed by  livery  of  seisin  or  by  parol.  Hence  it  is  clear,  and 
has  always  been  held,  that  in  regard  to  incorporeal  estates  no 
change  has  been  introduced,  but  that  they  were  left,  as  they 
stood  at  common  law,  transmissible  only  by  deed  or  writing 
sealed. 

§  3.  Again,  if  we  consider  the  three  first  sections  in  con- 
nection with  the  fourth  and  sixth,  the  broad  and  comprehen- 
sive views  of  those  who  produced  the  Statute  of  Frauds  will 
be  still  more  clearly  appreciated.  The  fourth  section  not 
only  has  the  effect  of  preventing  an  action  upon  a  verbal  con- 
tract for  the  sale  of  any  interest  in  land,  but  also  cuts  off 
those  equitable  claims  to  land  which  would  arise  upon  such 
a  contract  made  for  a  valuable  consideration,  and  which 
might  be  enforced  in  equity  so  as  ultimately  to  effect  a  trans- 


CH.   I.]      FORMALITIES   FOR   CONVEYING   ESTATES   IN   LAND.  5 

fer  of  real  estate  without  writing.  And  so  with  the  sixth 
section,  which  prevents  any  trust  in  real  estate  from  being 
manifested  or  proved  without  writing.  By  virtue  of  all  those 
sections,  if  faithfully  enforced  by  courts  of  equity  as  well  as 
courts  of  law,  it  becomes  impossible  to  transfer  any  interest 
in  land,  other  than  the  very  small  class  of  estates  saved  by 
the  second  section,  except  by  complying  with  those  formali- 
ties which  the  statute  has  wisely  required. 

§  4.  There  is,  it  is  true,  a  difference  of  phraseology  between 
the  sections  just  referred  to,  and  it  may  be  confessed  that  this 
and  similar  irregularities  in  the  language  of  the  statute  lead 
to  confusion  and  embarrassment  in  treating  of  the  general 
topics  to  which  it  relates.  The  sections  which  speak  of  con- 
veyances specify  in  detail  the  various  grades  of  property 
which  may  exist  in  real  estate,  whether  "leases,  estates, 
interests  of  freehold,  or  terms  of  years,  or  any  uncertain  in- 
terest of,  in,  or  out  of,  any  messuages,  manors,  lands,  tene- 
ments, or  hereditaments."  The  section  which  prohibits 
actions  upon  contracts  for  real  estate  goes,  it  might  be 
thought,  even  farther;  it  says  "lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concerning  them."  The  sec- 
tion which  prevents  trusts  in  real  estate  from  being  verbally 
proved  simply  uses  the  words  "  lands,  tenements,  or  heredita- 
ments."  We  shall  have  occasion  hereafter  to  refer  to  cases 
where  judges  have  dwelt  upon  the  expressions  "uncertain 
interests,"  "concerning,"  etc.,  as  embracing  particular  cases 
then  before  them ;  but  no  case  appears  to  have  been  directly 
decided  upon  the  ground  of  any  of  these  differences  of 
expression. 

§  5.  Sir  Edward  Sugden  explains  very  clearly  the  mutual 
relation  of  the  several  sections  which  refer  to  the  creation  of 
estates  in  land.  He  says  that  the  former  seem  to  embrace 
interests  of  every  description,  and  that  all  estates  actually 
created  without  the  formalities  required  therein  are  avoided 
by  their  operation;  while,  if  the  same  estates  rest  in  fieri, 
the  agreement  to  perfect  and  consummate  them  cannot  be 


6  STATUTE   OF  FKAUDS.  [CH.   L 

enforced  by  reason  of  the  latter  section,  relating  to  contracts. l 
But  it  is  to  be  remembered  that  the  sections  which  relate  to 
contracts  for,  and  trusts  in  land,  take  a  wider  range  than 
those  which  relate  to  transfers  of  land.  The  operation  of 
the  statute  in  the  latter  case  is  confined  to  corporeal  estates, 
or  such  as  could  previously  have  been  created  by  "  livery  of 
seisin  or  parol,"  and  does  not  extend  to  incorporeal  estates, 
which  lie  in  grant,  and  which,  as  well  after  the  statute 
as  before,  could  only  be  created  by  deed.  But  actions  can- 
not be  maintained  on  verbal  contracts  for,  nor  verbal  proof 
admitted  of  trusts  in,  incorporeal  any  more  than  corporeal 
estates.  On  a  comprehensive  view  of  the  statute  as  it  regards 
the  alienation  of  estates  in  land,  therefore,  we  see  that  all 
estates,  great  and  small,  corporeal  and  incorporeal,  are  now 
provided  for.  Where  an  incorporeal  estate  is  to  be  conveyed, 
the  common  law  demands  a  deed  for  that  purpose;  and 
the  Statute  of  Frauds  leaves  that  requirement  untouched. 
Where  a  corporeal  estate  is  to  be  conveyed,  the  statute 
demands  a  writing.  Where  a  contract  is  made  for  the  con- 
veyance of  either  a  corporeal  or  incorporeal  estate,  the 
statute  prevents  that  contract  from  being  enforced  unless  it 
be  in  writing ;  and  if  a  trust  is  alleged  in  either  corporeal  or 
incorporeal  estates,  the  statute  requires  written  evidence  of 
that  trust  to  be  provided. 

§  6.  The  next  question  to  be  considered  is,  what  changes 
the  statute  made  in  the  formalities  required  for  the  transfer 
of  estates  in  land;  and,  in  answering  it  satisfactorily,  we 
are  met  by  no  little  difficulty  in  the  exceedingly  concise  and 
somewhat  obscure  language  of  the  first  section.  One  con- 
struction, and  perhaps  the  most  obvious  one,  is  derived  from 
reading  it  affirmatively,  that  is,  as  if  it  enacted  that  all  the 
interests  and  estates  therein  enumerated  should  thereafter 
be  made  or  created  by  writing  and  signed  by  the  parties,  etc.  ; 
but  as  estates  of  freehold  are  embraced  in  the  enumeration,  this 
construction  requires  us  to  say  that  they  too  may  be  created 
1  1  Vend.  &  P.  94,  95. 


CH.   I.]      FORMALITIES   FOR   CONVEYING   ESTATES   IN   LAND.  7 

by  writing  merely  without  deed.1  If,  to  avoid  this  difficulty, 
we  say  that  a  seal  must  be  understood  as  required  in  addi- 
tion to  the  writing,  then  it  follows  that  terms  for  years  which 
could  originally  be  created  without  writing  must  now  be  not 
only  in  writing  but  also  under  seal.  The  important  inquiry 
arises,  therefore,  whether  the  statute  has  in  fact  made  it 
necessary  that  terms  for  years  be  created  by  deed.  This 
inquiry  was  presented  in  the  Supreme  Court  of  New  Jer- 
sey, in  1835,  in  the  case  of  Mayberry  v.  Johnson,  and 
answered  in  a  masterly  judgment  of  that  court,  pronounced 
by  Chief  Justice  Hornblower.  The  ninth  section  of  the  New 
Jersey  statute  is  copied  almost  literally  from  the  first  section 
of  the  English  statute,  and  the  case  came  before  the  court 
upon  a  verdict  for  the  plaintiff,  taken  in  an  action  of  eject- 
ment, subject  to  their  opinion  on  two  questions,  of  which 
the  first  was,  "  Whether  a  lease  for  more  than  three  years, 
not  under  seal,  is  a  good  and  valid  lease  within  the  Statute 
of  Frauds."  The  argument  for  the  plaintiff  was  the  same 
suggested  above,  that  if  a  lease  could  be  without  deed,  so 
could  a  conveyance  of  freehold.  The  Chief  Justice,  after  ac- 
knowledging the  absence  of  any  satisfactory  judicial  decision 
upon  the  question,  proceeded  to  decide  it  upon  the  construc- 
tion of  the  statute  as  ascertained  by  comparison  with  the  com- 
mon law.  "  At  the  common  law,  estates  in  fee,  for  life,  or 
for  years  with  remainder  in  fee,  in  tail  or  for  life,  might  have 
been  created  by  deed  and  livery  of  seisin,  or  by  livery  of  seisin 
only ;  and  leases  or  estates  for  years  might  have  been  made 
by  deed  or  by  parol,  or  by  parol  merely,  without  livery  of 
seisin.  It  must  also  be  remembered  that,  by  the  common  law 
of  England,  all  contracts  were  divided  into  agreements  by  spe- 

1  ^As  lately  as  the  year  1815,  in  Jackson  v.  Wood,  12  Johns.  (N.  Y.) 
73,  it  was  insisted  that  a  writing  not  under  seal  was  sufficient,  under 
the  Statute  of  Frauds,  to  pass  a  fee-simple.  This  position  was  not  sus- 
tained by  the  court,  but  they  admit  that  no  direct  decision  appeared 
to  have  been  made  on  the  point.  That  a  seal  is  necessary  to  pass  a  free- 
hold estate,  even  as  against  the  grantor,  see  Stewart  v.  Clark,  13  Met. 
(Mass.)  79. 


8  STATUTE   OF  FRAUDS.  [CH.   I. 

cialty  and  agreements  by  parol ;  there  was  no  such  third  class 
as  agreements  in  writing.  If  they  were  written  and  not  under 
seal,  they  were  parol  agreements.  A  lease  for  years  written, 
but  not  sealed,  was  a  parol  lease,  as  well  as  a  lease  unwritten 
and  verbal  only.  Thus  stood  the  law  of  conveyancing  and 
of  contracts  when  the  29  Car.  II.,  c.  3,  was  passed.  The 
question  then  occurs,  what  change  did  the  statute  introduce  in 
the  mode  of  creating  and  transferring  the  different  interests 
and  estates  of  freehold,  and  less  than  freehold,  mentioned  in 
the  statute.  The  answer  is  plain :  it  abolished  the  practice 
of  creating  estates  in  fee  and  all  other  estates  of  freehold, 
by  livery  of  .seisin  only  ;  and  prohibited  the  making  of  leases 
for  more  than  three  years,  by  parol  agreements,  not  put  in 
writing.  It  did  not  prescribe  the  manner  in  which  such 
estates  should  be  created  or  transferred,  but  only  declared 
that  freehold  estates,  if  made  by  livery  and  seisin  only,  and 
estates  for  years,  if  made  by  parol,  and  not  put  in  writing, 
should  operate  as  estates  at  will.  In  whatever  way,  there- 
fore, such  estates  might  have  been  created  prior  to  the  stat- 
ute, other  than  by  mere  livery  of  seisin,  or  by  parol,  and  not 
put  in  writing,  they  may  still  be  created.  Now  it  is  manifest 
that  before  the  Statute  of  Frauds,  estates  of  freehold  and  of 
inheritance  might  have  been  created  by  deed  and  livery  of 
seisin,  and  that  leases  might  have  been  made  by  writing  sim- 
ply, or,  to  speak  technically,  by  a  parol  agreement  reduced 
to  writing.  It  follows,  therefore,  that  after  the  Statute  of 
Frauds  no  estate  of  freehold  could  be  created  or  conveyed 
but  by  deed  ;  and  that  a  lease  for  more  than  three  years  could 
only  be  made  by  indenture  of  lease,  or  by  parol  agreement 
'  in  writing,  signed  by  the  parties. '  Thus,  by  resorting  to 
this  distributive  construction  (a  mode  of  construction  not  un- 
usual, and  often  necessary  to  be  adopted),  the  ninth  section 
of  the  Statute  of  Frauds  becomes  plain  and  intelligible ;  and  we 
are  able  to  decide,  without  hesitation,  that  a  lease  for  more 
than  three  years,  in  writing,  though  not  under  seal,  is  good 
and  valid  under  that  statute." 1 

1  Mayberry  v.  Johnson,  3  Green  (X.  J.),  116. 


CH.   I.]      FORMALITIES   FOR   CONVEYING   ESTATES   IN   LAND.  9 

§  7.  There  are  many  cases  to  be  found  in  the  books,  from 
which  it  appears  that  agreements  in  writing  for  leases, 
signed  but  not  sealed,  have  been  held  to  amount  to  leases, 
if  in  prcesenti,  and  if  it  did  not  appear  upon  the  whole 
instrument  that  the  parties  intended  that  it  should  not  take 
effect  until  a  more  formal  lease  should  be  prepared  and 
executed.1  These  agreements  are  not  leases,  in  strict  and 
legal  language ;  they  are  more  properly  parol  demises  "  put 
in  writing  and  signed  by  the  parties,"  etc.,  or  written 
evidence  of  leases.  A  lease,  when  we  mean  thereby  the 
instrument,  is  in  legal  language  an  indenture  of  lease,  or 
a  deed;  but  in  common  speech,  where  it  is  said  a  man 
has  a  lease  for  property,  nothing  more  is  meant  than  that 
he  has  a  term  or  an  estate  for  years  in  the  premises,  which 
may  be  by  deed  or  by  writing  not  under  seal.2  And  it 
may  be  considered  now  as  settled  law  both  in  England  and 
this  country,  that  the  Statute  of  Frauds  (except  as  it 
may  have  been  modified  by  subsequent  legislation)  does 
not  require  a  seal  for  the  creation  of  an  estate  for  years 
in  land.8 

§  8.  In  the  third  section  of  the  statute,  relating  to  the 
assignment,  grant,  or  surrender  of  an  existing  term  or  estate, 
the  distinction  is  plainly  marked  between  a  deed  and  a  note  in 
writing ;  the  use  of  either  being  permitted.  Accordingly,  it 
has  generally  been  held  in  both  countries  that  an  assignment, 


1  Baxter  v.  Browne,  2  W.  Bl.  973 ;  Goodtitle  v.  Way,  1  T.  R.  735 ; 
Morgan  v.  Bissell,  3  Taunt.  65;  Poole  v.  Bentley,  12  East,  168. 

2  Mayberry  v.  Johnson,  3  Green  (N.  J.),  120,  121. 

8  4  Greenl.  Cru.  Dig.  34;  Roberts  on  Frauds,  249;  Farmer  v.  Rogers, 
2  Wils.  26.  Maule,  J.,  in  Aveline  ».  Whisson,  4  Man.  &  G.  801.  The 
enactment  of  8  &  9  Viet.  c.  106,  §  3,  providing  that  leases,  etc.,  shall 
be  by  deed,  is  a  circumstance  strongly  tending  to  show  that  previously 
a  deed  was  not  supposed  to  be  necessary.  So  with  Mass  Gen.  Stat. 
c.  89,  §  3.  In  Allen  v.  Jaquish,  21  Wend.  628,  the  Supreme  Court  of 
New  York  says :  "  There  is  no  doubt  that  either  a  surrender  or  a  demise 
may  be  effected  by  a  simple  writing  not  sealed."  And  see  Hill  ». 
Woodman,  14  Me.  38 ;  Lake  v.  Campbell,  18  111.  106. 


10  STATUTE   OF  FRAUDS.  [CH.   I. 

grant,  or  surrender  of  an  existing  term  may  be  by  writing 
unsealed.1 

§  9.  On  the  other  hand  it  has  been  doubted  whether,  since 
the  statute,  a  lease  is  sufficiently  executed  by  being  sealed, 
though  not  signed.  Sir  William  Blackstone  says  the  statute 
"revives  the  Saxon  custom,  and  expressly  directs  the  sign- 
ing in  all  grants  of  lands  and  many  other  species  of  deeds,  in 
which,  therefore,  signing  seems  to  be  now  as  necessary  as  seal- 
ing, though  it  hath  been  sometimes  held  that  the  one  includes 
the  other. "  2  Chief  Justice  Willes,  in  Ellis  v.  Smith,  strongly 
disclaimed  deciding  to  the  contrary,  and  Blackstone's  view 
appears  to  be  favored  by  several  recent  cases  in  Massa- 
chusetts in  which  questions  have  been  made  as  to  the  effect 
of  a  defective  signature  upon  the  validity  of  a  deed.3  But 
the  opinion  stated  in  the  Commentaries  is  opposed  by 
another  eminent  writer,  who  says  it  was  conceived  through 
not  attending  to  the  words  of  the  statute.4  The  words  in 
question,  namely,  "by  livery  of  seisin  only  or  by  parol," 
defining  those  transfers  which  were  thenceforth  to  be  by 
writing  signed,  were  examined  in  Cooch  v.  Goodman,  in  the 
Queen's  Bench  in  1842.  It  was  not  necessary  in  that  case 
to  decide  the  question  we  are  now  considering,  but  it  is 
manifest  that  the  remarks  of  Patteson,  J.,  strongly  support 

1  Beck  v.  Phillips,  5  Burr.  2827 ;  Doe  d.  Courtail  v.  Thomas,  9  Barn. 
&  C.  288 ;  Holliday  v.  Marshall,  7  Johns.  (N.  Y.)  211  ;  Allen  v.  Jaquish, 
21  Wend.  628;  Sanders  v.  Partridge,  108  Mass.  556.     See  §  42,  post. 

2  2  Bl.  Cora.  306. 

8  Ellis  v.  Smith,  1  Ves.  Jr.  10;  Wood  v.  Goodridge,  6  Cush.  117; 
Gardner  v.  Gardner,  5  Cush.  483.  See  also  Hutchins  v.  Byrnes,  9  Gray, 
369,  per  Bigelow,  J.  Soon  after  the  act  was  passed,  the  question  was 
raised  in  the  Common  Pleas  upon  another  branch  of  the  statute ;  three 
judges  held  the  signature  to  be  unnecessary  to  a  will  having  a  seal;  -the 
other  doubted.  Lemayne  v.  Stanley,  3  Lev.  1.  That  sealing  a  will  is  a 
siguing  of  it  was  decided  in  Warneford  v.  Warneford,  2  Stra.  761  But 
see  Smith  v.  Evans,  1  Wils.  313.  This  point  is  farther  examined,  post, 
§  355,  under  the  head  of  the  fourth  section,  relating  to  contracts,  the 
language  of  which,  as  to  the  point  in  question,  does  not  differ  from  that 
of  the  sections  relating  to  conveyances. 

*  Mr.  Preston,  in  1  Shep.  Touch.  56,  n.  24. 


CH.   I.]      FORMALITIES  FOR  CONVEYING  ESTATES   IN  LAND.          11 

the  position  that  the  statute  did  not  mean  to  require  a  sig- 
nature to  a  sealed  conveyance  of  lands.1  Again,  in  the  more 
recent  case  of  Aveline  v.  Whisson,  where  a  declaration  was 
in  covenant  upon  an  indenture  of  lease,  a  plea  that  the  inden- 
ture was  not  signed  by  the  plaintiff,  nor  by  any  agent  author- 
ized in  writing,  was  held  bad  by  the  Court  of  Common  Pleas; 
and  Maule,  J.,  said:  "Can  the  other  side  contend  that 
a  deed  requires  a  signature?  This  is  not  like  a  lease  by 
parol. "  2  And  more  recently  still,  in  the  Court  of  Exchequer, 
it  has  been  stated  to  be  settled  that  under  the  first  section 
of  the  statute  sealing  alone  is  sufficient.3  These  latter  de- 
cisions appear  to  leave  no  room  for  question  upon  the  point 
as  matter  of  authority,  and  the  language  used  in  the  statute, 
upon  close  inspection  and  analysis,  does  not  seem  easily 

1  Cooch  v.  Goodman,  2  Q.  B.  580.  The  following  extract  from  the 
report  is  deemed  justified  by  the  doubt  which  has  been  entertained  upon 
this  important  point.  Counsel,  speaking  of  the  first  section  of  the 
statute,  says :  — 

"The  section  must  be  read  as  requiring  every  such  lease  to  be  in 
writing  and  signed,  otherwise  to  have  the  effect  only  of  a  lease  at  will. 
Can  any  instance  be  found  in  which,  since  that  statute,  a  lease  under  seal 
has  been  held  valid  without  signature  ?  " 

[PATTESON,  J.  "  You  read  the  statute  so  as  to  throw  out  the  words 
'  or  by  parol.' "] 

"  Some  words  must  be  rejected.  The  meaning  is  that  there  shall  be 
no  leases  by  livery  of  seisin  only,  or  by  parol  only ;  '  parol '  may  be  con- 
strued as  distinguished  either  from  a  deed  or  from  a  writing." 

[PATTESON,  J.  "'Livery  and  seisin  only,' mean  without  deed;  you 
give  no  sense  whatever  to  the  intermediate  words."] 

"  The  intention  was  that  all  demises  should  be  evidenced  by  the  signa- 
ture of  the  party  or  his  agent." 

[PATTESON,  J.  "  The  reference  to  the  agent  supports  the  agreement 
on  the  other  side  ;  had  the  intention  been  to  include  deeds,  it  would  have 
required  the  agent  to  be  authorized  by  deed,  and  not  merely  in  writ- 
ing."] 

LORD  DENMAN,  C.  J.,  in  delivering  the  judgment  of  the  court,  says : 
"  It  is  curious  that  the  question  should  now  for  the  first  time  have  arisen 
in  a  court  of  law,  and  perhaps  as  curious  that  it  is  not  now  necessary  to 
determine  it." 

a  Aveline  ».  Whisson,  4  Man.  &  G.  801. 

8  Cherry  v.  Hemming,  4  Exch.  631. 


12  STATUTE   OF   FRAUDS.  [CH.    I. 

reconcilable  with  any  other  interpretation.1  In  this  country 
also,  that  interpretation  has  received  the  approbation  of  the 
Supreme  Court  of  Indiana,  and  it  is  considered  by  a  re- 
spected American  writer,  in  a  recent  treatise,  'to  be  the 
better  doctrine.2 

§  10.  Assuming,  however,  that  the  statute  does  require  a 
signature  to  a  conveyance  of  an  interest  in  land,  the  impor- 
tant question  arises,  what  is  to  be  deemed  a  signature  under 
its  provisions ;  whether  it  allows  such  a  signature  as  would 
have  been  good  at  common  law,  as,  for  instance,  by  having 
the  grantor's  name  affixed  to  the  instrument  in  his  presence 
and  by  his  direction.  This  point  has  come  before  the  Court 
of  Appeals  of  South  Carolina  and  received  a  very  able  discus- 
sion. The  case  was  of  a  marriage  settlement  embracing  real 
property,  and  one  question  was,  whether  the  intended  wife 
had  validly  executed  the  instrument,  she  not  having  signed  it 
herself,  but  having  requested  a  witness  to  sign  her  name  for 
her,  which  was  accordingly  done  in  her  presence.  The  court, 
which  consisted  of  four  chancellors,  being  equally  divided  on 
the  question,  it  was  not  determined,  and  the  decision  passed 
upon  another  ground ;  but  the  opinion  of  Chancellor  Johnston, 
in  delivering  judgment,  presents  very  strongly  the  argu- 
ment against  the  validity  of  such  an  execution.  He  said: 
"The  statute  requires  the  party  to  sign  himself,  or  if  he  signs 
by  an  agent,  the  agent  must  be  authorized  in  writing.  When 
another  person  subscribes  for  him,  that  person  is  his  agent, 
whether  the  act  be  done  in  his  presence  or  out  of  it.  The 

1  See  the  reasoning  of  Patteson,  J.,  in  Cooch  v.   Goodman,   quoted 
supra.     The  English  law  is  also  stated  to  be  in  conformity  with  the 
position  presented  in  the  text,  in  Gresley,  Eq.  Evid.  p.  121 ;  and  1  Pres. 
Abs.  Tit.  294. 

2  Parks  v.  Hazlerigg,  7  Blackf.  (Ind.)  536 ;   1  Pars.  Cont.  96,  note, 
in  which  some  valuable  suggestions  may  be  found  as  to  the  formali- 
ties required  for  conveyances  by  the   statute.     By  the  Revised  Stat- 
utes of  Indiana,  1843,  p.  416,  conveyances  of  lands  or  of  any  estate  or 
interest  therein  are  expressly  required  to  be  subscribed  and  sealed.     See 
Appendix. 


CH.   I.]      FORMALITIES  FOR   CONVEYING   ESTATES   IN   LAND.         13 

only  difference  between  an  agency  exercised  in  the  presence 
and  one  executed  in  the  absence  of  the  principal  is  in  the  evi- 
dence of  the  agent's  authority.  The  presence  and  superin- 
tendence of  the  principal  are  proof  of  his  assent ;  other  proof 
may  be  necessary  when  he  is  absent.  But  in  either  case  it  is 
the  principal  who  acts,  and  not  the  agent.  If  the  agency  be 
made  out  by  proof  of  authority,  then  the  law  comes  in  and 
declares  that  the  act  done  by  him  shall  be  attributed  to  and 
shall  bind  the  principal.  The  common  law,  which  admitted 
parol  pro6f  of  authority,  would  no  doubt  have  declared  that 
an  act  done  in  the  presence  of  the  latter  by  his  procurement 
was  binding  on  him,  and  in  this  sense  that  it  was  his  own  act. 
But  the  statute  in  this  section  has  emphatically  declared 
that  if  an  agent  sign,  his  authority  shall  not  be  made  out  by 
parol,  but  must  in  all  cases  be  proved  by  writing.  The  act, 
if  otherwise  evidenced,  shall  not  be  the  act  of  the  principal, 
nor  bind  him.  This  enactment,  it  is  therefore  contended,  has 
materially  altered  the  common  law  in  this,  that  a  subscription 
by  agency,  wherever  executed,  if  the  authority  to  make  it  de- 
pend upon  parol,  is  not  the  subscription  of  the  party,  nor  con- 
clusive on  him."  The  learned  Chancellor  supports  this  view 
by  comparing  the  provisions  of  the  statute  in  regard  to  the 
execution  of  conveyances  with  those  in  regard  to  the  execu- 
tion of  wills ;  the  latter  expressly  permitting  the  alternative 
of  signature  by  the  testator,  or  "by  some  other  person  in  his 
presence  and  by  his  express  direction ; "  and  argues  that  the 
omission  of  this  alternative  in  the  former  case  shows  the  in- 
tention of  the  legislature  that  the  alternative  act  should  not, 
in  cases  of  conveyances,  be  permitted.  In  cases  of  wills,  the 
probable  physical  incapacity  of  the  testator  at  the  time 
affords  a  reason  for  allowing  him  to  sign  by  the  hand  of  an- 
other;  and  in  maintaining  that  no  exception  can  be  engrafted 
upon  the  statute  on  consideration  of  expediency,  where  the 
statute  itself  is  clear  against  such  exception,  the  Chancellor 
seems  to  admit  that,  by  his  construction,  all  persons  laboring 
under  such  physical  incapacity  to  sign  a  conveyance  or  letter 


14  STATUTE   OF   FRAUDS.  [CH.   L 

of  attorney  to  convey  are  disqualified  from  making  a  transfer 
of  land.1 

§  11.  In  the  case  of  Gardner  v.  Gardner,  the  Supreme  Court 
of  Massachusetts  refused  so  to  construe  the  statute.  The 
grantor  assented,  by  a  nod,  to  her  daughter's  signing  for  her, 
whereupon  the  daughter  signed  thus:  "Polly  Gvvinn  by  Mary 
G.  Gardner,"  and  the  court  held  that  it  was  not  to  be  consid- 
ered as  an  execution  by  an  attorney,  which  would  have  re- 
quired a  power  written  and  sealed,  but  as  an  execution  by 
the  grantor  herself.  Chief  Justice  Shaw,  delivering  the  opin- 
ion of  the  court,  said :  "  The  name,  being  written  by  another 
hand,  in  the  presence  of  the  grantor,  and  at  her  request,  is  her 
act.  The  disposing  capacity,  the  act  of  mind,  which  are  the 
essential  and  efficient  ingredients  of  the  deed,  are  hers,  and 
she  merely  uses  the  hand  of  another,  through  incapacity  or 
weakness,  instead  of  her  own,  to  do  the  physical  act  of  mak- 
ing a  written  sign.  To  hold  otherwise  would  be  to  decide 
that  a  person  having  a  full  mind  and  clear  capacity,  but 
through  physical  inability  incapable  of  making  a  mark,  could 
never  make  a  conveyance  or  execute  a  deed;  for  the  same 
incapacity  to  sign  and  seal  the  principal  deed  would  prevent 
him  from  executing  a  letter  of  attorney  under  seal. "  2  The 
report,  however,  does  not  show  any  physical  inability  on  the 
part  of  the  grantor  to  sign  for  herself,  but  a  plain  case  of 
execution  of  a  deed  of  land  by  the  hand  of  another,  similar 
to  that  which  the  court  in  South  Carolina  found  itself  unable 
to  sustain.  The  reasoning  in  Gardner  v.  Gardner  is  certainly 
very  satisfactory  as  to  cases  where  there  exists  such  physical 
inability ;  but  the  report  shows  no  reasoning  upon  the  ques- 
tion which  appears  to  have  been  actually  presented  on  the 
facts.  None  of  the  authorities  quoted  are  decisions  upon  the 
statute.  Ball  v.  Dunsterville 3  was  upon  a  bill  of  sale,  a  part- 

1  Wallace  v.  McCollough,  1  Rich.  Eq.  426 ;  and  see  Rockford,  &c., 
R.  R.  Co.  v.  Shunick,  65  111.  223. 

2  Gardner  v.  Gardner,  5  Cush.  483.     See  Bigler  v.  Baker,  58  N.  W. 
Rep.  (Xeb.)  1026. 

8  Ball  v.  Dunsterville,  4  T.  R.  313. 


CH.   I.]      FORMALITIES  FOR   CONVEYING   ESTATES   IN   LAND.          15 

nership  transaction,  and  one  partner  signed  for  both.  The 
remark  in  Greenleaf  on  Evidence,1  that  "if  the  signature  of 
an  obligor  be  made  by  a  stranger,  in  his  presence,  and  at  his 
request,  it  is  a  sufficient  signing,"  is  based  upon  the  decision 
in  Rex  v.  Longnor.2  That  was  a  case  upon  an  indenture  of 
apprenticeship,  where  the  names  of  the  apprentice  and  his 
father  were  signed  by  another  person,  in  their  presence,  and 
at  their  request.  The  instrument  was  not  read  over  to  the 
father,  but  the  court  held,  upon  the  authority  of  Thorough- 
good's  case,3  that  it  was  not  for  that  reason  invalid.  The  son 
subsequently  had  it  read  to  him  and  approved  it,  and  carried 
it  to  his  master  and  entered  as  apprentice  under  it.  It  was 
decided  that  the  instrument  was  validly  executed  by  both, 
but  the  question  whether  the  signature  by  the  hand  of  a 
third  person  was  sufficient  was  not  raised.  The  decision 
went  entirely  upon  Thoroughgood's  case,  in  which  the  deed 
was  actually  sealed  and  delivered  by  the  grantor,  and  which 
was  before  the  Statute  of  Frauds  was  enacted. 

§  12.  In  Irvin  v.  Thompson,  the  Supreme  Court  of  Ken- 
tucky adopted  the  same  course  of  reasoning  as  that  in  Gardner 
v.  Gardner.  A  letter  authorizing  the  sale  of  lands  was  sub- 
scribed with  the  name  of  the  party,  by  another  person,  at  her 
request,  and  in  her  presence,  and  a  contract  for  the  sale  of  the 
land,  made  by  the  attorney  under  that  letter,  was  now  sought 
to  be  enforced.  The  court  held  that  the  power  was  sufficient 
though  not  actually  signed  by  the  principal,  because,  "to 
construe  the  statute  to  require  an  authority  to  make  a  con- 
tract for  the  sale  of  land  to  be  in  writing  and  signed  by  the 
party  giving  such  authority,  would  in  effect  prevent  any  per- 
son who  is  unable  to  write  from  making  a  binding  contract. 
Such  an  effect  cannot  be  presumed  to  have  been  within  the 
intent  of  the  legislature  to  produce  by  the  statute."4  Upon 

*  Vol.  II.  §  295. 

2  Rex  v.  Longnor,  4  Barn.  &  Ad.  647. 
8  Thorough  good's  case,  2  Coke  Rep.  5. 
4  Irvin  v.  Thompson,  4  Bibb,  295. 


16  STATUTE   OF  FRAUDS.  [CH.   I. 

the  point  actually  before  the  court  in  this  case,  however,  no 
question  could  arise,  as  contracts  for  the  sale  of  lands  are  pro- 
vided for  by  the  fourth  section  of  the  statute,  which  does  not 
require  that  the  authority  to  make  them  should  be  in  writing. 
It  seems,  therefore,  that  there  is  no  decision  directly  support- 
ing Gardner  v.  Gardner,  if  the  point  there  decided  be  that  a 
deed  of  land  is  well  signed  if  the  signature  of  the  grantor  be 
affixed  thereto  by  a  third  party,  in  his  presence,  and  at  his 
request,  notwithstanding  the  Statute  of  Frauds.  But  as  the 
Revised  Statutes  of  Massachusetts  1  did  not  in  terms  require 
that  the  attorney  for  signing  shall  be  appointed  by  writing, 
and  as  the  common  law  does  not  require  a  written  authority 
to  make  a  transfer  by  parol  (whether  verbal  or  written),  the 
decision  in  question  may  be  supported  under  these  limitations. 
In  those  States  where  the  provision  of  the  statute  requiring 
the  attorney  to  be  appointed  by  writing  is  re-enacted,  -the 
question  will  undoubtedly  present  considerable  difficulty. 
In  Michigan  it  is  held  that  an  agreement  for  the  sale  of  land 
signed  by  another  with  the  name  of  the  seller,  in  his  presence, 
and  at  his  request,  is,  in  legal  contemplation,  signed  by  the 
seller  himself.2  It  has  also  been  decided  repeatedly  that  after 
legal  acknowledgment  of  the  signature  to  a  deed,  as  that  of 
the  grantor,  he  will  not  be  heard  to  deny  the  fact  of  having 
signed  it.3 

§  12  a.  To  the  suggestion  that  a  strict  adherence  to  the 
statute  will  prevent  a  person  laboring  under  physical  inca- 
pacity from  making  a  conveyance,  it  may  be  answered  that  a 
case  can  hardly  be  supposed  where  the  party  would  not  be 
able  to  make  his  mark,  a  mode  of  execution  well  known  to  be 
sufficient.  That  the  opinion  of  Chancellor  Kent,  on  the  other 
hand,  is  opposed  to  any  relaxation  of  the  statute  in  this  respect, 
may  be  inferred  from  his  language  in  the  case  of  Jackson  v. 

1  Rev.  Stats,  c.  59,  §  29. 

2  Eggleston  v.  Wagner,  46  Mich.  610.     See  Dickinson  v.  Wright,  56 
Mich.  42. 

8  Kerr  v.  Russell,  69  111.  666;  Tunison  v.  Chamberlin,  88  111.  378; 
Johnson  v.  Van  Velsor,  43  Mich.  208. 


CH.   I.]      FORMALITIES  FOE   CONVEYING   ESTATES   IN   LAND.          17 

Titus,  where  he  says:  "The  affixing  of  the  hand  and  seal  to 
a  piece  of  blank  paper  never  can  be  considered  an  assignment 
by  deed  or  note  in  writing,  within  the  requisitions  of  the  Stat- 
ute of  Frauds.  And  to  allow  the  subsequent  filling  up  of  the 
deed  by  a  third  person  to  have  relation  back  to  the  time  of  the 
sealing  and  delivery  of  the  blank  paper  in  consequence  of  some 
parol  agreement  of  the  parties,  is  to  open  a  door  to  fraud 
and  perjury,  and  to  defeat  the  wise  and  salutary  provisions 
of  the  statute. " J 

§  12  b.  Upon  the  whole,  however,  the  drift  of  judicial 
opinion  is  so  strong  in  the  direction  given  to  the  law  by 
Gardner  v.  Gardner,  that  it  must  now  apparently  be  con- 
sidered settled  that  a  conveyance  of  an  estate  in  land  is  well 
signed,  as  the  conveyance  of  the  principal  under  the  statute, 
if  the  grantor's  name  be  affixed  by  another  in  the  grantor's 
presence,  and  by  his  oral  direction,  whether  there  be  any 
physical  incapacity  on  his  part  or  not.  The  cases  are  to  be 
supported,  it  seems,  only  on  the  ground  that  such  an  execu- 
tion is  to  be  regarded  not  at  all  as  an  execution  by  attorney 
(for  which  the  statute  in  terms  requires  a  written  authority), 
but  as  an  execution  by  the  principal  in  a  manner  sufficient 
at  common  law  and  not  controlled  by  the  language  of  the 
statute.2  Where  the  question  arose  of  a  deed  which,  when 
signed  and  sealed,  contained  only  the  printed  form,  and  of 
which  the  blanks  for  the  names  of  the  parties,  the  description 
of  the  land,  and  a  certain  agreement  of  release,  were  after- 
wards inserted,  in  the  absence  of  the  grantor,  by  his  agent 
previously  orally  authorized  to  do  so,  the  Supreme  Court  of 
Massachusetts  held  the  deed  to  be  void.3  The  court  say :  "  If 
such  an  act  can  be  done  under  a  parol  agreement,  in  the 

1  Jackson  v.  Titus,  2  Johns.  (N.  Y.)  430. 

2  Frost  v.  Deering,  21  Me.   156 ;  Mut.  Benefit  Ins.  Co.  ».  Brown,  30 
N.  J.  Eq.   193  ;    Allen  v.  Withrow,   110  U.  S.   119.     See   Jansen  ». 
McCahill,  22  Cal.  563  ;  Videau  v.  Griffin,  12  Cal.  389;  Burns  v.  Lynde, 
6  Allen  (Mass.)  309 ;  Pierce  v.  Hakes,  23  Pa.  St.  242. 

8  Burns  v.  Lynde,  6  Allen,  305.  See  also  Basford  v.  Pearson,  0  Allen, 
387;  Skinner  v.  Brigham,  126  Mass.  132,  and  Upton  ».  Archer,  41  Cal.  85. 

2 


18  STATUTE   OF  FRAUDS.  [CH.   I. 

absence  of  the  grantor,  its  effect  must  be  to  overthrow  the 
doctrine  that  an  authority  to  make  a  deed  must  be  given  by 
deed."  They  refer  to  Gardner  v.  Gardner,  and  recognize  it 
as  correctly  deciding  "  that  a  deed  signed  for  the  grantor  in 
his  presence  and  at  his  request  is  good  without  a  power  of 
attorney,"  and  add  that  "it  states  accurately  the  distinction 
between  acts  done  in  the  presence  and  by  the  direction  of 
the  principal,  and  acts  done  in  his  absence ;  the  former  are 
regarded  as  done  by  the  principal  himself,  and  the  instrument 
need  not  purport  to  be  executed  by  attorney,  while  the  latter 
must  be  done  under  a  power  and  must  purport  to  be  so  done." 
§  13.  When  the  deed  is  executed  by  an  attorney  for  that 
purpose,  he  should  sign  the  name  of  the  grantor.1  The  best 
form  of  execution  is  writing  the  name  of  the  principal,  adding 
the  words,  "by  his  attorney,"  and  then  signing  the  name  of 
the  attorney.  But  an  execution  may  be  valid,  though  not  in 
this  form,  provided  it  clearly  shows  the  signing  to  be  the  act 
of  the  principal,  done  and  executed  in  his  name,  by  the  attor- 
ney. Thus,  where  the  attorney's  name  precedes  that  of  the 
principal,  the  execution  has  been  held  sufficient.2  The  attor- 
ney may  also  execute  by  signing  the  name  of  his  principal 
alone.3  In  Wilks  v.  Back,4  it  was  said  by  Lawrence,  J.,  that 
if  an  attorney  should  seal  and  deliver  a  deed  in  the  name  of 
the  principal,  that  would  be  enough,  without  stating  that  he 
had  so  done;  and  it  does  not  appear  to  have  been  ever 
decided  that  the  signing  of  the  grantor's  name  by  the  attor- 
ney, without  adding  words  to  show  that  it  was  done  by 

1  Combes's  Case,  9  Co.  75  a ;  Bac.  Abr.  Leases,  I.  §  10 ;  1  Pres.  Abs. 
Tit.  293;  Elwell  v.   Shaw,  16  Mass.  42.     In  Maine,  it  is  sufficient  if  the 
deed  be  executed  in  the  name  of  the  agent  for  the  principal.     Compare 
Curtis  ».  Blair,  26  Miss.  309. 

2  Wilks  r.  Back,  2  East,  142,  145  ;  Jones  v.  Carter,  4  Hen.  &  M.  (Va.) 
184;  Mussey  «.  Scott,  7  Cush.  (Mass.)  215.     See  Echols  v.  Cheney,  28 
Cal.  157 ;  Morrison  v.  Bowman,  29  Cal.  352 ;  Bo<rart  v.  De  Bussy,  6  Johns. 
(X.  Y.)  94;  Locke  v.  Alexander,  1  Hawks  (N.  C.)  412. 

8  Devinney  v.  Reynolds,  1  Watts  &  S.  (Pa.)  332. 
*  Wilks  v.  Back,  2  East,  142,  145. 


CH.    I.]      FORMALITIES  FOR   CONVEYING   ESTATES   IN   LAND.          19 

attorney,  was  not  a  sufficient  signing.  The  question  was 
presented  in  Massachusetts,  where  the  conveyancer  wrote  at 
the  bottom  of  the  deed  the  words  "  Benjamin  Goodridge,  by 
his  attorney,"  and  the  attorney,  instead  of  writing  his  own 
name,  wrote  the  name  of  the  grantor,  "Benjamin  Goodridge." 
The  court  decided  the  case  upon  another  ground,  but  in  the 
opinion  by  Fletcher,  J.,  it  is  said  that  they  were  inclined  to 
think  it  was  not  a  valid  execution.  It  is  strongly  urged  that 
it  is  nowhere  stated  or  suggested  in  any  work  of  authority 
that  such  a  mode  of  execution  is  proper  and  legal,  and  the 
inconvenience  of  permitting  it  is  forcibly  explained.  The 
doctrine  of  Lawrence,  J.,  above  quoted,  is  noticed,  but  not 
much  regarded.1  Where  the  attorney  signs  his  own  name 
only,  the  deed  will  not  be  sufficiently  executed.2  There  is 
said  to  be  an  exception  to  this  rule,  however,  in  the  case 
where  the  deed  conveys  land  belonging  to  a  town  or  state, 
which  has  authorized  the  attorney  by  vote  or  resolve.3 
Wherever  a  conveyance  under  seal  is  good  without  any 
signature,  as  has  been  shown  to  be  the  doctrine  of  the  more 
recent  English  authorities,  it  would  seem  unreasonable  to 

1  Wood  v.  Goodridge,  6  Gush.  117.  The  learned  judge  thus  states 
the  argument  from  inconvenience  :  "  If  the  agent  might  execute  instru- 
ments in  this  mode,  fhe  principal;  if  he  found  his  name  signed  to  an  instru- 
ment, would  have  no  means  of  knowing  by  whom  it  had  been  signed,  or 
whether  he  was  bound  or  not  bound  by  such  signature  ;  and  other  persons 
might  be  greatly  deceived  and  defrauded,  by  relying  upon  such  signature  as 
the  personal  act  and  signature  of  the  principal,  when  the  event  might 
prove  that  it  was  put  there  by  an  agent,  who  had  mistaken  his  authority, 
and  consequently  that  the  principal  was  not  bound.  When  it  should  be 
discovered  that  the  name  of  the  principal  was  not  written  by  him,  as  it 
purports  to  be,  it  might  be  wholly  impossible  to  prove  the  execution  by 
attorney,  as  there  would  be  nothing  on  the  note  to  indicate  such  an 
execution." 

8  Townsend  ».  Corning,  23  Wend.  (N.  T.)  435 ;  Martin  v.  Flowers,  S 
Leigh  (Va.),  158.  Contra,  Tenant  v.  Blacker,  27  Ga.  418  (statutory) ; 
Rogers  ».  Bracken,  15  Tex.  564.  In  Rogers  v.  Frost,  14  Tex.  267,  such 
an  execution  was  sustained  in  equity,  as  being  a  defective  execution  of 
a  valid  power. 

8  Ward  v.  Bartholomew,  6  Pick.  (Mass.)  409;  Cofran  v.  Cockran,  5 
N.  H.  458;  Thompson  v.  Carr,  5  N.  H.  510. 


20  STATUTE   OF  FRAUDS.  [CH.   I. 

hold  that  a  defective  signature  invalidates  the  deed,  and 
that  it  does  not,  appears  to  be  the  opinion  of  an  eminent 
English  writer.1  In  the  execution  of  a  deed  by  a  corporation, 
the  affixing  of  the  corporate  seal  is  the  essential  thing,  and 
the  signature  is  of  value  only  as  evidence  that  the  sealing 
is  authorized.2  Where  therefore  an  instrument,  necessarily 
under  seal,  is  executed  on  behalf  of  a  corporation,  it  will  be 
bound  thereby  if  the  seal  appears,  or  can  be  shown  to  be,  the 
corporate  seal,  or  to  have  been  affixed  as  such.3  But  when  a 
corporation  executes  an  instrument  which  does  not  require 
a  seal,  the  manner  of  its  execution  will  be  subject  to  the 
rules  governing  simple  contracts;  and  this,  though  a  seal 
should  in  fact  be  affixed.4 

§  14.  As  to  the  agent  who  may  sign  for  the  grantor  under 
the  three  first  sections,  nothing  is  required  by  the  statute 
except  that  he  be  "thereunto  lawfully  authorized  in  writ- 
ing."5 No  personal  qualifications  therefore  appear  to  be 
demanded  for  the  agent  other  than  those  which  are  demanded 
at  common  law  in  other  cases  of  agency.  At  common  law 
it  was  not  necessary  to  appoint,  in  writing,  an  attorney  to 
make  a  transfer  of  an  interest  in  land  not  under  seal  though 
in  writing.6  This  difference  results  from  the  distinction, 
heretofore  alluded  to,  between  conveyances  by  parol  and 
conveyances  by  deed.  The  common  law  put  all  parol  trans- 

1  4  Greenl.   Cru.  Dig.   48;  Co.  Litt.  48,  c.   52  6.     See  Plummer  v. 
Russell,  2  Bibb  (Ky.)  174. 

2  Cooch  r.  Goodman,  2  Q.  B.  580  ;  Jackson  v.  Walsh,  3  Johns.  (N.  Y.) 
226. 

8  Brinley  v.  Mann,  2  Cash.  (Mass.)  337;  Hutchins  v.  Byrnes,  9  Gray 
(Mass.)  367;  Haven  v.  Adams,  4  Allen  (Mass.)  80. 

4  Aug.  &  A.  Corp.  §  223;  Sherman  r.  Fitch,  98  Mass.  59.  Compare 
Abbey  r.  Chase,  6  Cush.  (Mass.)  54;  Fullamt;.  West  Brookfield,  9  Allen 
(Mass.)  1. 

8  In  Tennessee,  the  attorney  need  not  be  authorized  in  writing.    John- 
son v.  Somers,  1   Humph.  268.     Nor,   it  seems,  in  Massachusetts;  see 
ante,  §  12.     Nor,  semble,  in  New  Jersey  ;  Doughaday  v.  Crowell,  11  N.  J. 
Eq.  201.     See  Lobdell  v.  Mason,  15  So.  Rep.  (Miss.)  44. 

9  1  Story  Ag.  §  50. 


CH.   I.]      FORMALITIES   FOR  CONVEYING   ESTATES   IN 

\ 

fers  of  land,  whether  written  or  oral,  upon  the  sam 
not  requiring  any  but  a  verbal  authority  to  make  ti 
was  to  this  point  that  the  clause  we  are  now  consideri 
directed.     As  the  statute   declared  that  such   conve> 
should  thenceforth  be  made  in  writing  only,  so  it  dec*  ..ed 
that,  to  make  such  writing,  the  attorney  must  thenceforth 
be  authorized  by  writing.1     Whether  it  is  necessary  that  the 
authority  be  signed,  if  it  be  sealed,  is  a  question  quite  iden- 
tical with  that  which  has  been  heretofore  considered  upon 
the  subject  of  execution  by  the  principal  instead  of  an  attor- 
ney.    If,  as  was  there  suggested,  it  is  a  sufficient  execution  by 
the  principal  to  seal  the  instrument  without  signing,  it  will 
of  course  be  a  sufficient  execution  of  the  authority  to  the 
agent.     The  general  rule,  however  applicable  to  this  subject, 
is  clear,  that,  whatever  be  the  act  required  to  be  done,  the 
power  to  do  it  must  be  conferred  by  an  instrument  of  as 
solemn  a  nature  as  the  act  to  be  performed.2    If  a  deed  is 
to  be  executed,  the  power  to  do  it  must  be  sealed ;  this  is  a 
principle  of  common  law. 

§  14  a.  And  it  has  generally  been  held  that  if  an  agent,  in 
the  name  of  his  principal,  but  without  his  authority,  execute 
an  instrument  requiring  a  seal,  the  principal's  subsequent 
ratification  must  be  under  seal.3  In  Massachusetts,  however, 
there  are  some  decisions  indicating  a  relaxation  of  this  rule  of 
the  common  law.  In  the  case  of  Mclntyre  v.  Park,4  the  court 
says:  "The  defendant  contends  that  a  sealed  instrument, 

1  In  a  case  in  North  Carolina,  Shamburger  ».  Kennedy,  1  Dev.  1,  it 
was  said  that  an  authority  by  parol  would  not  be  sufficient,  because 
titles  to  land  must  be  evidenced  by  written  conveyances.     This  is  mani- 
festly an  incorrect  view,  for,  under  the  fourth   section  of  the  statute, 
certain  contracts  are  required  to  be  evidenced  by  writing,  but  the  agent  to 
make  them  may  be  appointed  verbally.     The  written  letter  of  attorney, 
expressly  required  by  the  first  section,  appears  to  be  a  mark  of  that 
superior  caution  always  exercised  by  legislatures  in  regard  to  whatever 
concerns  the  title  to  land. 

2  1  Story  Ag.  §  50 ;  2  Kent  Com.  614. 
»  Story  *Ag.  242. 

4  Mclntyre  e.  Park,  11  Gray,  102. 


22  STATUTE   OF   FKAUDS.  [CH.   I. 

executed  without  previous  authority,  can  be  ratified  only  by 
an  instrument  under  seal.  However  this  may  be  elsewhere, 
by  the  law  of  Massachusetts  such  instrument  may  be  ratified 
by  parol.  .  .  .  The  cases  in  which  this  doctrine  has  been 
adjudged  were  those  in  which  one  partner,  without  the  pre- 
vious authority  of  his  copartners,  executed  a  deed  in  the 
name  of  the  firm.  But  we  do  not  perceive  any  reason  for 
confining  the  doctrine  to  that  class  of  cases. "  This  statement 
was  not  necessary  to  the  decision  of  the  case,  the  instrument 
in  question  (as  appears  from  the  report)  being  a  contract  for 
the  sale  of  land,  and  therefore  not  necessarily  under  seal.1 
The  statement  is  quoted  and  affirmed  in  a  late  case;  but 
here  again  it  was  not  necessary  to  the  decision,  the  instru- 
ment being  a  lease  for  five  years,  which  one  of  two  partners 
had  signed  and  sealed,  but  under  which  both  had  entered.2 

§  14  b.  The  decision  in  another  case  in  Massachusetts 
would  seem  to  involve  a  similar  limitation  of  the  gen- 
eral doctrine.  The  action  was  a  writ  of  entry  to  re- 
cover land  conveyed  by  the  deed  of  the  owner,  a  married 
woman.  To  this  instrument  she  had  affixed  the  signature  of 
her  husband  in  his  absence,  and  without  a  sealed  authority, 
or  perhaps  with  no  authority  at  all.  The  defendant  denied 
the  validity  of  this  instrument,  but  the  court  held  that  a 
subsequent  acknowledgment  by  the  husband  of  the  deed, 
bearing  his  signature  so  previously  affixed  by  his  wife  in  his 
absence,  was  a  recognition  and  adoption  of  the  signature  as 
his  own ;  and  the  conveyance  was  held  valid.  The  decision 
was  clearly  put  on  the  ground  of  subsequent  ratification, 
but  no  notice  seems  to  have  been  taken  of  the  fact  that  this 
was  by  parol.3 

1  Swisshelm  v.  Swissvale  Laundry  Co.,  95  Pa.  St.  367. 

2  Holbrook  v.  Chamberlin,   116  Mass.  155.     For  other  decisions  in 
Massachusetts,  bearing  on  this  point,  see  Warring  v.  Williams,  8  Pick. 
326;  Cady  v.  Shepherd,  11  Pick.  400;  Tapley  v.  Butterfield,  1  Met.  515; 
Swan  v.  Stedman,  4  Met.  548;  Russell  v.  Annable,  109  Mass.  72. 

8  Bartlett  v.  Drake,  100  Mass.  174.  Compare  Burns  v.  Lynde,  6  Allen 
(Mass.)  305;  Basford  v.  Pearson,  9  AUen  (Mass.)  387. 


CH.   I.]      FORMALITIES   FOR  CONVEYING   ESTATES   IN   LAND.          23 

§  15.  The  rule  requiring  a  written  power  to  the  attor- 
ney from  whom  a  conveyance  of  an  estate  in  land  is  to 
proceed  is  equally  applicable,  although  the  power  is  to  be 
exercised  through  judicial  forms.  Thus  it  was  held  in  Penn- 
sylvania that  a  verbal  submission  to  arbitrators  of  a -ques- 
tion of  partition  did  not  give  them  authority  to  make  that 
partition.1 

§  16.  A  doctrine  recently  applied  in  Massachusetts  to  cases 
of  transfers  of  land  within  the  Statute  of  Frauds,  that  if  the 
grantor  request  another  to  affix  his  name  to  the  deed,  and  it  is 
so  done  in  the  grantor's  presence,  this  is  an  original  execution 
by  the  grantor,  and  not  a  verbal  appointment  of  an  attorney, 
has  been  heretofore  considered  under  the  question,  what  con- 
stitutes a  valid  execution  by  the  principal.2 

§  17.  A  subsequent  ratification  in  due  form  of  an  attorney's 
act  always  cures  any  defect  in  his  original  appointment ;  and 
for  such  purpose,  in  cases  affected  by  this  branch  of  the  Stat- 
ute of  Frauds,  the  ratification  must  of  course  be  by  writing.3 
In  South  Carolina,  where  a  sale  and  conveyance  of  land  were 
made  by  a  sheriff  under  a  defective  order  of  court  for  fore- 
closure of  a  mortgage,  it  was  held  that  it  operated  as  an  as- 
signment of  the  mortgagee's  legal  title,  that  the  sheriff  was 
the  agent  of  the  mortgagee,  and  that  the  answer  of  the  mort- 
gagee, admitting  the  facts,  was  a  sufficient  compliance  with 
the  Statute  of  Frauds.4 

1  Gratz  v.  Gratz,  4  Rawle,  411. 

2  Gardner  ».  Gardner,  5  Cush.  483,  cited  ante,  §11. 

»  McDowell  v.  Simpson,  3  Watts  (Pa.)  129;  Parrish  v.  Koons,  1  Pars. 
(Pa.)  Eq.  Cas.  79.  But  see  Bartlett  v.  Drake,  100  Mass.  174.  The  doings 
of  an  agent  whose  appointment  is  not  valid  for  want  of  writing  cannot 
estop  his  principal  unless  actually  adopted  by  him.  Holland  v.  Hoyt, 
14  Mich.  238;  Judd  v.  Arnold,  31  Minn.  430;  Henderson  v.  Beard,  51 
Ark.  483;  McCHntock  v.  South  Penn.  Oil  Co.,  146  Pa.  St.  144. 

4  Stoney  v.  Shultz,  1  Hill  Eq.  499.    See  post,  §  515. 


24  STATUTE   OF  FRAUDS.  [CH.   IL 


CHAPTER  IL 

LEASES  COVEEED   BY   THE    STATUTE. 

§  18.  THE  first  section  of  the  English  Statute  of  Frauds  is 
sufficiently  comprehensive  in  its  language  to  embrace  the  crea- 
tion of  all  possible  estates  in  land,  from  the  greatest  to  the 
least.  But,  as  has  been  suggested  heretofore,  its  object  was 
not  to  dispense  with,  but  to  superadd,  solemnities  in  their 
creation;  and  hence,  as  all  freehold  and  all  incorporeal 
estates  were  at  common  law  required  to  be  created  by  deed, 
and  so  were  already  provided  for,  the  first  section  may  be 
regarded  as  contemplating  only  those  estates  in  land  which 
might,  up  to  the  time  of  the  statute,  have  been  created  ver- 
bally ;  namely,  corporeal  estates  less  than  freehold,  the  crea- 
tion of  which  is  commonly  said  to  be  by  lease.  Whether  it 
might  not  be  necessary  to  restrict  the  application  of  the  first 
section  still  farther,  was  a  question  in  the  case  of  Crosby  v. 
Wadsworth,  where  a  verbal  agreement  was  made  for  the  pur- 
chase of  a  standing  crop  of  mowing  grass,  with  liberty  for  an 
ndefinite  time  to  the  purchaser  to  enter  and  take  the  grass. 
Lord  Ellenborough  said  that,  construing  the  first  and  second 
sections  together,  the  former  should  be  held  to  embrace  only 
those  leases  which  were  for  a  longer  term  than  three  years,  but 
still  under  a  rent  reserved  upon  the  thing  demised,  and  that 
the  agreement  in  the  case  before  him,  not  containing  either 
of  these  features,  was  not  vacated  as  a  lease.1  The  decision 
was  upon  another  ground,  however,  and  it  must  be  doubted 
whether  the  suggestion  was  well  considered.  Sir  A.  McDon- 
ald, C.  B.,  only  three  years  afterwards,  seems  to  have  enter- 

1  Crosby  ».  Wadsworth,  6  East,  610.     See  §  244,  post. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.  25 

tained  no  such  view  of  the  mutual  relation  of  the  first  three 
sections ;  for,  when  it  was  argued  that  by  the  leases  mentioned 
in  the  third  section  as  to  be  assigned  by  writing  only  must  be 
intended  such  leases  as  by  the  first  and  second  sections  could 
be  created  by  writing  only,  namely,  those  conveying  a  larger 
interest  than  three  years,  he  rejected  that  construction,  and 
held  that  the  lease  in  question,  though  created  verbally,  could 
be  assigned  only  by  writing.1  Sir  Edward  Sugden  shows 
very  clearly  that  to  confine  the  first  section  to  leases  upon  a 
rent  would  lead  to  inadmissible  conclusions;2  and  it  may  be 
added  that  if  we  take  into  consideration  the  whole  language 
of  the  second  section,  as  consistency  requires  that  we  should 
do,  we  must  confine  the  statute  to  leases  upon  such  a  rent  as 
is  equal  "to  two-thirds  of  the  full  improved  value  of  the  thing 
demised ; "  a  construction  which  would  render  the  statute 
almost  wholly  inoperative,  as  it  regards  leases.  In  a  subse- 
quent part  of  this  chapter  3  we  shall  have  occasion  to  consider 
what  practical  effect  this  second  section  of  the  English  statute, 
and  kindred  enactments  in  our  own  country,  have  had  upon 
the  law  of  leases. 

§  19.  Confining  ourselves,  then,  to  the  first  section  of  the 
English  statute,  the  first  inquiry  which  presents  itself  is,  — 
What  is  a  lease  of  land  within  the  meaning  of  its  provisions? 
It  is  obvious  that  for  the  most  part,  and  in  the  common  cases 
of  letting  land,  the  inquiry  is  one  upon  which  no  great  diffi- 
culty can  arise.  But  the  Statute  of  Frauds  descends  in  this 
respect  to  very  minute,  and,  so  to  speak,  indistinct  interests 
in  lands ;  and  in  regard  to  these,  questions  of  much  nicety 
may  occur. 

§  20.  The  relation  of  landlord  and  tenant  must,  of  course, 
in  all  cases  be  distinctly  found  to  exist,  whether  the  interest 
acquired  in  the  premises  be  great  or  small.  Merely  giving 
permission  to  a  tenant,  who  has  been  duly  notified  to  quit,  to 

1  Botting  v.  Martin,  1  Camp.  317. 
1  Vend.  &  P.  95. 
«  §§  21,  et  seq. 


26  STATUTE   OF   FKAUDS.  [CH.   II. 

remain  on  the  premises  till  they  are  sold,  does  not  amount  to 
a  new  lease  to  him,  so  as  to  entitle  him  to  any  term  of  notice 
afterwards.  *  Nor  does  an  agreement  to  pay  an  increased  rent, 
in  consideration  of  repairs,  amount  to  a  lease,  but  it  may  be 
proved  verbally. 2  Nor  does  an  agreement,  whereby  the  owner 
of  land  is  to  have  the  help  of  another  in  cultivating  it, 
paying,  in  return,  a  share  of  the  crop,  constitute  a  lease.  But 
if  an  agreement  is  made  by  the  owner,  whereby  another  is  to 
possess  the  land,  with  the  usual  privileges  of  exclusive  enjoy- 
ment, a  tenancy  in  the  land  will  be  created,  although  the 
rent  is  to  be  paid  out  of  the  crop  produced.3  An  agreement 
to  provide  board  and  lodging  is  not  a  lease  and  does  not 
require  a  writing,  even  though  the  particular  rooms  to  be 
occupied  be  designated.*  An  actual  lease  of  certain  rooms 
comes  within  the  statute.5  To  make  the  transaction  a  lease, 
it  is  necessary  that  the  party  hiring  should  acquire  thereby 
such  privileges  of  exclusive  enjoyment  and  control  of  the 
rooms  as  to  amount  to  an  interest  in  the  realty ;  therefore 
the  agreement  ordinarily  made  with  the  keeper  of  a  hotel  or 


1  Whiteacre  v.  Symonds,  10  East,  13.     See   Hollis  v.  Pool,  3  Met. 
(Mass.)  350. 

2  Hoby  v.  Roebuck,  7  Taunt.  157;  Donellan  v.  Read,  3  Barn.  &  Ad. 
899.    But  see  Crawford  v.  Wick,  18  Ohio  St.  190. 

8  Creel  v.  Kirkham,  47  111.  344;  Wilber  ».  Sisson,  53  Barb.  (N.  Y.) 
258;  Guest  v.  Opdyke,  31  N.  J.  L.  552.  See  Warner  v.  Abbey,  112 
Mass.  355.  In  Pennsylvania,  where  the  statute  as  it  relates  to  contracts 
has  not  been  adopted,  verbal  contracts  for  the  sale  of  interests  in  land, 
appear  to  have  been,  in  some  measure,  brought  within  the  range  of  the 
first  section,  so  as  to  forbid  a  decree  for  their  specific  execution,  though 
actions  for  damages  for  the  breach  of  them  maybe  maintained;  the 
decree  in  the  former  case  having  the  effect  to  transfer  land  on  verbal 
evidence  of  title,  but  the  judgment  in  the  latter  case  resting  only,  in 
pecuniary  damages.  Treat  v.  Hiles,  68  Wise.  344. 

4  Wright  v.  Stavert,  2  El.  &  E.  721 ;  Wilson  v.  Martin,  1  Denio  (N.  Y.) 
602;  White  v.  Maynard,  111  Mass.  250.  In  Johnson  v.  Wilkinson,  139 
Mass.  3,  the  same  rule  was  applied  to  the  hiring  of  a  hall  for  dancing 
parties  on  certain  days. 

6  Inman  v.  Stamp,  1  Stark.  12;  Edge  v.  Strafford,  1  Cromp.  &  J.  391; 
Porter  v.  Merrill,  124  Mass.  534. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.          27 

boarding-house  does  not  fall  within  the  statute ;  the  proprie- 
tor, in  those  cases,  retaining  the  general  property,  control, 
and  care  of  the  premises  which  the  guest  is  to  occupy. 1 

§  21.  By  far  the  most  important  questions,  however,  as  to 
the  essential  features  of  a  lease,  within  the  statute,  have  arisen 
upon  transactions  having  the  form  of  a  mere  verbal  license ; 
and  it  will  be  useful  to  give  a  somewhat  extended  examina- 
tion to  the  cases  involving  them.  "We  shall  probably  be  able 
to  deduce  from  the  English  decisions  a  tolerably  consistent 
doctrine  in  regard  to  these  questions ;  but  in  some  of  our 
own  States  it  must  be  confessed  there  has  been  a  freedom 
exercised  in  the  construction  of  the  statute  on  this  point, 
which  seems  to  have  gone  far  to  unsettle  established  prin- 
ciples of  the  common  law  itself,  as  well  as  to  confound 
the  interpretation  and  defeat  the  policy  of  the  Statute  of 
Frauds. 

§  22.  It  may  not  be  superfluous  to  call  to  mind  some  of  the 
leading  characteristics  of  licenses  properly  so  understood.  A 
mere  license,  whether  written  or  verbal,  conveys  no  interest 
in  the  land.  It  simply  confers  an  authority  to  do  a  certain 
act  or  series  of  acts  upon  the  land  of  another,  and  so  long  as 
it  remains  unrevoked  it  is  a  justification  for  all  acts  done  in 
pursuance  of  it,  and  for  which  the  party  committing  them 
would  otherwise  be  liable  in  trespass  or  case.  Moreover, 
when  the  license  is  to  enter  and  remove  certain  property  from 
the  land,  the  licensee  acquires  a  good  title  to  the  property  so 
removed  while  the  license  continues  in  force,  and  may,  upon 
the  ground  of  the  license,  defend  an  action  of  trover  by  the 
previous  owner.  Such  licenses,  however,  are  in  their  nature 
mere  personal  privileges,  not  assignable  by  the  licensee,  not 
inuring  to  his  representatives,  and  not  binding  upon  the 
assignees  or  heirs  of  the  estate  in  respect  of  which  they  are 
granted.  So  long  as  they  remain  unexecuted,  they  are  revo- 

1  The  distinction  is  recognized  and  affirmed  in  Wells  p.  Kingston- 
upon-Hull,  L.  R.  10  C.  P.  402,  which  was  a  case  concerning  a  contract 
for  the  dockage  of  a  vessel. 


28  STATUTE   OF  FKAUUS.  [CH.   IL 

cable  by  the  grantor;  and  they  are  ipso  facto  revoked  upon 
the  conveyance  of  his  estate,  and  expire  with  the  performance 
of  the  act  or  acts  which  they  authorize  to  be  done.  These 
doctrines  in  regard  to  licenses  as  understood  at  common  law, 
and  in  respect  to  which  the  Statute  of  Frauds  has  certainly 
made  no  change,  are  to  be  found  in  every  text-book,  and 
are  so  familiar  and  so  firmly  fixed  that  they  have  never  in 
terms  been  questioned,  even  where  their  spirit  has  been  most 
plainly  invaded.  But  in  the  application  of  the  rules  that 
licenses,  after  execution,  cannot  be  revoked,  and  that  they 
justify  acts  done  in  pursuance  of  them,  many  practical  diffi- 
culties have  arisen.  So  long  as  the  act  or  acts  done  are  of 
a  transitory  nature,  the  rules  may  be  applied  without  embar- 
rassment, the  very  doing  of  the  acts  working  a  determination 
of  the  license.  But  if  the  act  done  be  of  a  permanent  nature, 
amounting  to  a  continued  occupation  and  enjoyment  of 
another's  land,  we  have  at  once  to  reconcile  the  principle 
that  acts  done  in  execution  of  a  license  are  justified  by  it, 
and  cannot  be  converted  into  wrongs  by  a  revocation  of  the 
license  afterwards,  with  the  principle  of  common  law  that 
an  easement  of  land  or  continuing  privilege  to  make  use  of 
land  in  derogation  of  the  proprietor's  original  rights,  cannot 
be  enjoyed  without  a  grant  by  deed  or  a  prescription  which 
presumes  a  deed,  and  with  the  provision  of  the  Statute  of 
Frauds,  that  no  estate  or  interest  in  land  shall  pass  without 
writing. 

§  23.  The  confusion  which  has  to  a  certain  extent  pre- 
vailed between  licenses  and  leases  appears  to  have  had  its 
origin  in  the  case  of  Wood  v.  Lake,  decided  a  few  years  after 
the  Statute  of  Frauds  was  passed.  A  verbal  license  was  given 
to  stack  coals  on  part  of  another's  close  for  seven  years,  the 
licensee  during  that  time  to  have  the  sole  use  of  that  part  of 
the  close.  After  the  plaintiff  had  acted  upon  the  license  for 
three  years,  the  defendant  (his  grantor)  forbade  him  to  stack 
any  more  coals  there,  and  shut  his  gates.  The  court  decided 
that  the  agreement  amounted  to  a  license  only,  and  not  to  a 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.  29 

lease,  and  was  good  for  seven  years,  and  the  plaintiff  had 
judgment.1     The  only  authority  on  which  this  decision  pro- 

1  Wood  v.  Lake,  Sayer,  3.  The  following  report  of  this  case,  from  the 
manuscript  of  Mr.  Justice  Burrough,  is  given  in  Wood  v.  Leadbitter,  13 
Mees.  &  W.  838,  and  it  seems  well  worth  while  to  insert  it  here. 

CASE.  "  A  parol  agreement  that  the  plaintiff  should  have  liberty  of 
laying  and  stacking  of  coals  upon  defendant's  close,  for  seven  years. 
Afterwards,  defendant  forbids  plaintiff  to  lay  any  more  coals  there,  and 
shuts  up  his  gates.  Defendant  says,  that  plaintiff  was  but  tenant  at  will. 
Quaere,  if  this  was  an  interest  within  the  description  of  the  Statute  of 
Frauds. 

Serjeant  Booth.  This  is  but  a  personal  license  or  easement.  1  Roll. 
Abr.  859,  p.  4;  Roll.  Rep.  143,  152  ;  1  Saund.  321.  A  contract  for  sale 
of  timber  growing  upon  the  land  has  been  determined  to  be  out  of  the 
statute.  1  Ld.  Raym.  182.  Vide  the  difference  of  a  license  and  a  lease. 
1  Lev.  194.  This  must  be  taken  only  as  a  license,  for  that  the  coal- 
loaders  also  are  to  have  benefit  as  well  as  plaintiff. 

Serjeant  Poole,  for  defendant.  Question  is,  if  any  interest  in  land 
passed  by  the  agreement;  for,  if  interest  passed,  it  is  within  the  statute, 
ergo  void,  being  for  longer  term  than  three  years.  Bro.  License,  p.  19; 
Thome  v.  Seabright,  Salk.  24;  Webb  «.  Paternoster,  Poph.  151.  A 
license  to  enter  upon  and  occupy  land  amounts  to  a  lease.  The  plaintiff 
was  not  confined  to  a  particular  part  of  the  close,  and  might  have  covered 
the  whole  if  he  pleased,  on  that  account  it  is  an  uncertain  interest.  The 
distinction  of  license  to  plaintiff  and  his  coal-loader  is  nothing;  he  could 
not  stack  the  coal  himself,  and  it  is  merely  vague.  Easement  may  be  of 
more  value  than  the  inheritance;  ex.  gr.  way-leave 

LEE,  C.  J.  If  this  be  a  lease,  as  it  is  argued,  it  is  within  the  statute, 
and  void  for  not  being  in  writing.  No  answer  as  yet  is  given  to  the  case 
in  Popham,  where  the  stacking  of  hay,  which  is  similar,  was  determined 
to  be  a  license.  The  word  uncertain,  in  the  statute,  means  uncertainty  of 
duration,  not  of  quantity.  License  was  not  revocable,  and  there  is  no 
case  to  show  this  to  be  considered  as  a  lease. 

DENNISON,  J.  This  seems  not  to  be  an  interest,  so  called,  in  the  lan- 
guage of  the  law;  although  easements,  in  general  speaking,  may  be 
called  interests.  Had  the  plaintiff  such  an  interest  as  to  have  main- 
tained a  clausum  fregitf  Certainly  not.  If  a  man  licenses  to  enjoy 
lands  for  five  years,  there  is  a  lease,  because  the  whole  interest  passes, 
but  this  was  only  a  license  for  a  particular  purpose. 

FOSTER,  J.  These  interests,  grounded  upon  licenses,  are  valuable, 
and  deserve  the  protection  of  the  law,  and  therefore  may,  perhaps,  have 
been  within  the  intention  of  the  words  of  the  statute.  Desired  further 
time  for  consideration ;  stood  over. 

N.  B.  —  Afterwards,  upon  motion  for  judgment  the  last  day  of 


30  STATUTE   OF  FRAUDS.  [CH.  II. 

fesses  to  rest  is  Webb  v.  Paternoster,  decided  previously  to 
the  enactment  of  the  statute.1  This  was  a  case  of  license  to 
the  plaintiff  to  keep  his  hay  in  a  certain  close  until  he  could 
sell  it ;  and  it  having  been  there  two  years,  it  was  held  that 
a  reasonable  time  for  selling  it  had  elapsed.  This  seems  to 
have  been  really  the  sum  of  the  decision.  Indeed,  there  are 
indications  in  the  report  that  the  license  was,  in  point  of  fact, 
under  seal,  and  therefore  in  conformity  with  the  requirements 
both  of  the  common  law  and  of  the  statute,  if  it  can  be  said 
to  have  any  bearing  whatever  upon  the  latter.2 

§  23  a.  Upon  the  authority  of  these  two  cases,  that  of  Tayler 
v.  Waters  was  decided  in  the  Common  Pleas,  in  the  year  1815. 
That  was  an  action  against  the  doorkeeper  of  an  opera  house, 
for  preventing  the  plaintiff  from  entering  during  a  perform- 
ance. The  plaintiff  had  come  into  possession,  by  purchase, 
of  a  silver  ticket  entitling  the  holder  to  admission  to  the 
house  for  twenty-one  years,  and  had  been  allowed  by  the 
proprietors,  by  virtue  of  the  ticket,  to  attend  the  house  for 
fourteen  years.  It  was  objected  that  the  right  claimed  was 
an  interest  in  land,  and,  being  for  more  than  three  years, 
could  not  pass  without  a  writing  signed  by  the  party  or  his 
agent  authorized  in  writing,  and  that  the  person  who,  as 
agent  of  the  proprietors,  had  originally  granted  the  ticket  in 
question  to  the  first  holder  was  not  so  authorized.  It  was 
further  insisted  that  such  an  interest,  being  an  easement, 
could  only  pass  by  deed.  Chief  Justice  Gibbs  referred  to 
Wood  v.  Lake,  and  Webb  v.  Paternoster,  as  abundantly  prov- 
ing that  a  license  to  enjoy  a  beneficial  privilege  on  land 
might  be  granted  without  deed,  and,  notwithstanding  the 
Statute  of  Frauds,  without  writing,  and  held  that  what  the 

the  term,  and  gave  judgment  for  the  plaintiff.  Foster  non-dissenti- 
ente." 

The  case  will  also  be  found  reported  in  Palm.  71;  Godb.  282;  Poph. 
151;  Rol.  152;  Noy,  98. 

1  Poph.  151. 

2  See  this  case  commented  on  iu  Wood  v.  Leadbitter,  13  Mees.  &  W. 
847,  cited  §  24. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.          31 

plaintiff  claimed  was  a  license  of  this  description  and  not 
an  interest  in  land.1  This  decision  was  never  followed  in 
England,  and  has  in  effect  been  overruled  by  subsequent 
cases,  some  of  which  it  may  be  well  to  notice  briefly  in  this 
place. 

§  24.  In  Hewlins  v.  Shippam,  the  plaintiff,  at  considerable 
expense,  made  a  drain  over  the  defendant's  land,  by  his  verbal 
permission.  The  defendant  afterwards  stopped  up  the  drain, 
and  the  plaintiff  brought  his  action.  Bay  ley,  B. ,  delivered  the 
judgment  of  the  court,  holding  that,  although  a  parol  license 
might  be  an  excuse  for  a  trespass  till  countermanded,  a  right 
and  title  to  have  passage  for  the  water  for  a  freehold  interest 
required  a  deed  to  create  it ;  and  that,  as  there  had  been  no 
deed  in  this  case,  the  present  action,  which  was  founded  upon 
a  right  and  title,  could  not  be  supported.2  Cocker  v.  Cowper 
was  an  entirely  similar  case,  and  therein  it  was  said  that 
Hewlins  v.  Shippam  was  conclusive  to  show  that  an  easement 
to  have  water  running  upon  another's  land  could  not  be  con- 
ferred by  parol.8  In  a  later  instance  in  the  Court  of  Exche- 
quer, where  Webb  v.  Paternoster  and  Tayler  v.  Waters  were 
cited  to  the  point  that  there  might  be  an  irrevocable  license 
to  be  exercised  upon  land,  Parke,  B.,  remarked:  "It  certainly 
strikes  one  as  a  strong  proposition  to  say  that  such  a  license 
can  be  irrevocable,  unless  it  amounts  to  an  interest  in  land, 
which  must  therefore  be  conveyed  by  deed.4  The  latest  and 
what  must  be  regarded  as  the  decisive  case  in  England  on 
this  subject  is  Wood  v.  Leadbitter,  in  the  Court  of  Exchequer, 
in  1845.  The  plaintiff  had  a  ticket  for  which  he  paid  a  guinea, 
admitting  him  to  the  grand  stand  of  the  Doncaster  races,  and 
was  in  the  enclosure  upon  the  strength  of  his  ticket,  when 
the  defendant,  by  order  of  the  steward  of  the  races,  turned 

1  Tayler  p.  Waters,  7  Taunt.  374. 
a  Hewlins  ».  Shippam,  5  Barn.  &  C.  221. 
8  Cocker  v.  Cowper,  1  Cromp.  M.  &  R.  418. 

*  Williams  v.  Morris.  8  Mess.  &  W.  488.  See  Dorris  e.  Sullivan,  90 
Ala.  279. 


32  STATUTE   OF  FKAUDS.  [CH.  IL 

him  out,  and  without  paying  back  the  price  of  the  ticket.  It 
was  held  that  a  right  to  come  and  remain  for  a  certain  time 
on  the  land  of  another,  as  was  the  right  claimed  by  the  plain- 
tiff, could  be  granted  only  by  deed,  and  that  a  parol  license 
to  do  so,  though  money  were  paid  for  it,  was  revocable  at 
any  time  and  without  paying  back  the  money. 1 

§  25.  Indeed,  with  the  exception  of  Tayler  v.  Waters,  the 
decision  in  Wood  v.  Lake,  establishing  a  parol  lease  under  the 
name  of  a  license,  does  not  appear  to  have  ever  been  affirmed 
in  England,  and  its  principles  have  been  repudiated  in  a  long 
series  of  cases  in  addition  to  those  just  cited.2 

§  26.  The  distinction  between  such  licenses  to  be  exercised 
upon  land  as  may  be  well  granted  by  parol,  and  such  as  amount 
to  leases  and  require  a  writing,  is  thus  stated  by  Parker,  C.  J., 
delivering  the  judgment  of  the  Supreme  Court  of  Massachu- 
setts, in  the  case  of  Cook  v.  Stearns,  in  1814.  "  A  license  is 
technically  an  authority  given  to  do  some  one  act  or  series  of 
acts  on  the  land  of  another,  without  passing  any  estate  in  the 
land,  such  as  a  license  to  hunt  in  another's  land,  or  to  cut 


1  Wood  v.  Leadbitter,  13   Mees.,  &  W.    838;   affirmed  in  Ruffey  v. 
Henderson,  21  L.  J.  (Q.  B.)  49.     And  see  McCrea  v.  Marsh,  12  Gray 
(Mass.)  211;  Burton  v.  Scherpf,  1  Allen  (Mass.)  133.     Purcell  v.  Daly, 
19  Abb.  N.  C.   (X.  Y.)  301.     But  see  Drew  v.  Peer,  93  Pa.  St.  234; 
McGowern  v.  Duff,  12  N.  Y.  680. 

2  Rex.  v.  Horndon-on-the-hill,  4  Maule  &  S.  565 ;  Fentiman  v.  Smith, 
4  East,  107;  Bryan  v.  Whistler,  8  Barn.  &  C.  288;  Wallis  v.  Harrison,  4 
Mees.  &  W.  538;  Rex  v.  Standon,  2  Maule  &  S.  461 ;  Bird  v.  Higginson, 
6  Ad.  &  E.  824;  Ruffey  v.  Henderson,  21  L.  J.  (Q.  B.)  49.     Sir  Edward 
Sugden,  in  a  note  to  p.  96  of  his  Treatise  on  Vendors  and  Purchasers, 
cites  Winter  v.  Brockwell,  8  East,  308,  and  Wood  v.  Manley,  11  Ad.  &  E. 
34,  as  having  followed  Wood  v.  Lake.     But,  with  great  deference,  this 
must  be  an  oversight.     The  former  case  was  a  mere  case  of  extinguish- 
ment of  an  easement  by  express  permission  of  the  party  entitled  to  it, 
accompanied  by  corresponding  acts  on  his  part ;  such  as  is  always  ad- 
mitted to  be  binding  in  view  both  of  the  common  law  and  of  the  statute. 
Stevens    v.    Stevens,    11  Met.   (Mass.)    251;   Dyer  v.    Sanford,  9  Met. 
(Mass.)  395;  Ang.  Waterc.  351.     The  latter  relates  to  an  entirely  dif- 
ferent rule;   namely,  that  a  parol  license,  coupled  with  an  interest,  is 
irrevocable.     See  post,  §  27  a. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.  33 

down  a  certain  number  of  trees.  These  are  held  to  be  revoca- 
ble while  executory,  unless  a  definite  term  is  fixed,  but  irrevo- 
cable when  executed. " l  "  Such  licenses  to  do  a  particular 
act,  but  passing  no  estate,  may  be  pleaded  without  deed.  But 
licenses  which  in  their  nature  amount  to  granting  an  estate  for 
ever  so  short  a  time  are  not  good  without  deed,  and  are  con- 
sidered as  leases,  and  must  always  be  pleaded  as  such.  The 
distinction  is  obvious.  Licenses  to  do  a  particular  act  do  not 
in  any  degree  trench  upon  the  policy  of  the  law  which  requires 
that  bargains  respecting  the  title  or  interest  in  real  estate 
shall  be  by  deed  or  in  writing.  They  amount  to  nothing 
more  than  an  excuse  for  the  act  which  would  otherwise  be  a 
trespass.  But  a  permanent  right  to  hold  another's  land  for 
a  particular  purpose,  and  to  enter  upon  it  at  all  times  without 
his  consent,  is  an  important  interest  which  ought  not  to  pass 
without  writing,  and  is  the  very  object  provided  for  by  our 
statute. "  2 

§  27.  Cases  of  licenses  coupled  with  an  interest  in  a  chattel 
differ  from  mere  licenses  in  that,  whether  executed  or  not, 
they  are  absolutely  irrevocable.  Such  licenses  are  said  to  be 

1  For  further  illustrations  see  Davis  v.  Townsend,  10  Barb.  (N.  Y.) 
333;  People  v.  Goodwin,  5  N.  Y.  568;  Whitaker  v.  Cawthorne,  3  Dev. 
(N.  C.)  389;  Dillion  v.  Crook,  11  Bush  (Ky.)  321;  Pierpont  v.  Barnard, 
6  N.  Y.  279;  Greeley  v.  Stilson,  27  Mich.  153;  Marsh  ».  Bellew,  45  Wise. 
36;  Sovereign  v.  Ortmann,   47  Mich.    181;    Spalding  v.   Archibald,  52 
Mich.  365;  R.  &  D.  R.  R.  v.  D.  &  N.  R.  R.,  104  N.  C.  658.    A  license  to 
hunt  in  another's  land  (referred  to  in  Cook  v.  Stearns  as  passing  no  estate), 
coupled  with  the  right  to  take  away  the  game  killed  on  any  part  of  it, 
is  however  held  to  give  an   interest  in  land,  and  to   require  writing. 
Webber  v.  Lee,  L.  R.  9  Q.  B.  315. 

2  Cook  v.  Stearns,  11  Mass.  533.     The  doctrine  here  laid  down   is 
manifestly  opposed  to  the  spirit  of  Wood  v.  Lake,  but  from  the  differ- 
ence in  phraseology  between  the  Massachusetts  and  the  English  Statutes 
of  Frauds,  it  was  not  necessary  in  terms  to  repudiate  that  decision.     See 
Stevens  v.  Stevens,  11  Met.  (Mass.)  251.     It  is  proper  to  note  also  a 
little  latitude  of  expression  in  Cook  v.  Stearns,  namely,  that  "  licenses 
which  amount  to  granting  an  estate  for  ever  so  short  a  time  are  not  good 
without  deed."     There  are,  of  course,  many  estates  which,  so  far  as  the 
Statute  of  Frauds  is  concerned,  may  be  granted  by  simple  writing  with- 
out deed. 


34  STATUTE   OF  FRAUDS.  [CH.   II. 

created  when  the  owner  of  land  sells  chattels  or  other  per- 
sonal property  situated  upon  the  land;  for  the  vendee  there- 
by obtains  an  implied  license  to  enter  on  the  premises  and 
take  possession  of  and  remove  the  property.  "  In  such  cases, 
the  license  is  coupled  with  and  supported  by  a  valid  interest 
or  title  in  the  property  sold,  and  cannot  be  revoked.  So,  too, 
if  the  owner  of  chattels  or  other  personal  property,  by  virtue 
of  a  contract  with,  or  the  permission  of,  the  owner  of  land, 
places  his  property  on  the  land,  the  license  to  enter  upon  it 
for  the  purpose  of  taking  and  removing  the  property  is  irrev- 
ocable. "  1  It  may  be  doubted  whether  privileges  of  this  sort 
depend  upon  the  giving,  either  actually  or  by  implication,  of 
any  license;  they  seem  rather  to  be  rights  incident  to  the 
property  in  the  chattel,  which  pass  with  the  title  as  essential 
to  the  enjoyment  of  the  thing  bought,  and  not  to  depend 
upon  any  permission  that  may  be  given  or  withheld  by  the 
vendor.  Furthermore,  they  are  irrevocable,  whether  acted 
upon  or  not. 

§  27  a.  There  is  another  class  of  privileges,  affecting  real 
property,  that  may  not  be  revoked,  although  granted  by 
parol.  When  the  owner  of  a  dominant  estate  gives  parol 
permission  to  the  owner  of  the  servient  estate  to  do,  upon  his 
own  land  or  that  of  a  third  person,  acts  of  so  decisive  and 
conclusive  a  nature  as  to  indicate  and  prove  the  intent  of  the 
licenser  to  abandon  his  easement,  such  parol  permission  can- 
not be  revoked.2  The  rule  in  one  of  its  bearings  is  well 
stated  in  the  case  of  Curtis  v.  Noonan,3  where  the  court 

1  Giles  v.  Simonds,  15  Gray  (Mass.)  441 ;  Poor  ».  Oakman,  104  Mass. 
309;  Wood  ».   Manley,  11  Ad.  &  E.  34;  Whitmarsh  v.  Walker,  1  Met. 
(Mass.)   313;   Erskine   r.   Plummer,  7   Greenl.    (Me.)   457;  Parsons  r. 
Camp,  11  Conn.  525.     The  license  must  be  given  by  one  having  author- 
ity to  give  it:  Nelson  v.  Garey,  114  Mass.  418;  and  the  entry  under  it 
must  be  peaceable:  Churchill  v.  Hulbert,   110  Mass.  42.     A  license  to 
one  who  has  been  tenant,  to  enter  and  remove  a  house  or  fixtures  which 
it  is  agreed  he  shall  have,  is  also   good  without  writing.     Dubois   v. 
Kelley,  10  Barb  (X.  Y.)  496. 

2  Dyer  v.  Sanford,  9  Met.  (Mass.)  402. 

8  Curtis  ».  Noonan,  10  Allen  (Mass.)  406. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.          35 

says :  "  An  easement  in  real  estate  can  be  acquired  only  by 
deed,  or  by  prescription  which  presupposes  a  deed;  but  it 
may  be  destroyed  or  extinguished,  abandoned  or  renounced, 
in  whole  or  in  part,  by  a  parol  license  granted  by  the  owner 
of  the  dominant  tenement,  and  executed  upon  the  servient 
tenement."  The  same  doctrine  holds,  however,  whether 
the  right  abandoned  be  a  natural  right  or  an  easement,  and 
whether  the  license  be  executed  upon  the  servient  tenement, 
or,  as  was  the  case  in  Curtis  v.  Noonan,  upon  that  of  a  third 
person.1  Privileges  of  this  sort  differ  from  mere  licenses  in 
not  being  intended  as  justifications  of  acts  done  on  the  gran- 
tor's land.  The  granting  of  the  permission  is  regarded  by 
the  law  as  showing  an  abandonment,  either  in  whole  or  in 
part,  of  the  only  right  which  would  otherwise  be  infringed. 
After  such  an  abandonment,  the  licenser  can  no  longer  be  in- 
jured by  what  has  been  done,  and  consequently  can  no  longer 
object  to  its  continuance.  But  the  permission  given  may  be 
such  as,  by  its  terms,  to  exclude  any  idea  of  abandoning  or 
abridging  the  right.  The  case  of  Wood  v.  Edes,  decided  by 
the  Supreme  Court  of  Massachusetts,  is  an  instance.  It 
appeared  that  the  permission  there  given  amounted  to  a  mere 
license  during  the  grantor's  pleasure,  with  sufficient  notice 
that  no  other  would  be  granted,  and  a  bill  to  enjoin  the  revo- 
cation of  the  permission  was  dismissed,  the  court  holding 
that  if,  under  such  circumstances,  the  grantees  incurred 
expenses,  the  value  of  which  to  them  would  depend  upon  the 
continuance  of  the  license,  they  acted  at  their  own  risk.2 

§  28.  We  have  seen  that  licenses  to  do  acts  of  a  temporary 
or  transient  nature  upon  the  grantor's  land  confer  no  interest 
In  the  land.  But  where  the  act  licensed  is  of  such  a  char- 
acter that  the  licensee  cannot  perform  it  without  actually 

i  Winter  v.  Brockwell,  8  East,  308  ;  Liggins  v.  Inge,  7  Bing.  682 ; 
Davies  v.  Marshall,  10  C.  B.  N.  8.  97;  Stevens  v.  Stevens,  11  Met.  (Mass.) 
251 ;  Morse  P.  Copeland,  2  Gray  (Mass.)  302 ;  Vechte  v.  Raritan  Water 
Power  Co.,  21  N.  J.  Eq.  475. 

8  Wood  ».  Edes,  2  Allen  (Mass.)  578. 


36  STATUTE    OF  FKAUDS.  [CH.    II. 

holding  and  occupying  the  licenser's  land  for  the  purpose,  the 
permission  must  be  in  writing,  as  the  transaction  is  in  effect 
a  lease  of  the  premises  to  that  extent.  Of  this  nature  is  a 
license  to  erect  and  maintain  a  dam  by  which  water  is  flowed 
back  upon  the  grantor's  land,  to  dig  and  carry  away  ore, 
etc.1  In  some  States,  however,  such  licenses  have  been  held 
to  be  good  without  a  writing,  and  upon  the  ground  that  the 
permission  was,  after  all,  only  to  do  a  series  of  acts  upon  the 
grantor's  land.2  But  it  would  seem  that,  under  such  an 
interpretation  of  a  license,  any  lease  whatever  for  any  length 
of  time  might  be  verbally  created  by  merely  giving  to  it  the 
form  of  a  license. 

§  29.  This  violent  interpretation  of  a  license  to  do  a  par- 
ticular act  or  series  of  acts  on  another's  land  has  been  in 
several  cases  carried  so  far  as  to  hold  that  a  parol  permission 
to  place  permanent  erections  upon  the  land  itself  was  valid 
and  binding,  and  that  the  owner  of  the  land  could  not  after- 


1  Mumford  v.  Whitney,  15  Wend.  (N.  Y.)  380 ;  Brown  v.  Woodworth, 
5  Barb.  (N.  Y.)  550 ;  Brown  v.  Galley,  Hill  &  D.  (N.  Y.)  310 ;  Moulton 
v.  Faught,  41  Me.  298 ;  Yeakle  v.  Jacob,  33  Pa.  St.  376 ;  Trammell  v. 
Trammell,  11  Rich.  (S.  C.)  471;  French  v.  Owen,  2  Wise.  250;  Carter 
v.  Harlan,  6  Md.  20;  Collins  Co.   v.   Marcy,  25  Conn.  239;   Riddle  r. 
Brown,  20  Ala.  412;  Pitman  v.  Poor,  38  Me.  237;  Bridges  v.  Purcell,  1 
Dev.  &B.  (N.  C.)   Law,  492;   Woodward  ».  Seely,  11  111.  157;  Hall  v. 
Chaffee,  13  Vt.  150;  Phillips  v.   Thompson,  1  Johns.  (N.  Y.)  Ch.  131; 
Bennett  v.  Scutt,  18  Barb.  (N.  Y.)  347;  M'Kellip  v.  M'llhenny,  4  Watts 
(Pa.)  317;  Desloge  v.  Pearce,  38  Mo.  588;  Duinneen  v.  Rich,  22  Wise. 
550;    Cayuga  Railway  Co.  t>.  Niles,   13  Hun   (N.   Y.)   170;    Ganter  v. 
Atkinson,  35  Wise.   48.     In  a  case  in  Michigan,  where  there  had  been 
exclusive  possession  of  lands  by  flowage  for  several  years,  resting  on  a 
parol  license  at  a  regular  rent  reserved,  those  facts  were  held  to  be  evi- 
dence to  justify  a  jury  in  finding  that  the  "license  "  was  really  a- parol 
lease  for  an  indefinite  time,  but  good  as  a  lease  from  year  to  year  till 
terminated  by  notice.     Morrill  v.  Mackman,  24  Mich.  279;    Hamilton 
Co.  v.  Moore,  25  Fed.  Rep.  4  ;   Hammond  v.  Winchester,  82  Ala.  470  ; 
Meetze  v.  Railroad  Co.,  23  S.  C.  2. 

2  Clement  ».  Durgin,  5  Greenl.   (Me.)  9 ;  Woodbury  v.  Parshley,  7 
N.  H.  237;  Sampson  v.  Burnside,  13  N.  H.  264.     And  see  Sheffield  v. 
Collier,  3  Kelly  (Ga.)  82. 


CH.  II.]       LEASES  COVERED  BY  THE  STATUTE.          37 

wards  remove  them  without  committing  a  trespass.1  It  is 
clear,  however,  that  the  weight  of  authority  in  both  countries 
is  against  such  a  doctrine.  As  was  said  by  Swift,  J.,  in 
Benedict  v.  Benedict,  where  a  man  built  a  house  on  the  land 
of  another  under  a  mere  parol  license :  *'  If  a  parol  license, 
even  when  carried  into  effect,  will  give  the  builder  a  right  to 
continue  the  house  so  long  as  it  shall  last,  and  to  maintain 
ejectment  for  it,  then  real  estate  may  be  transferred  by  parol ; 
which  is  directly  contrary  to  the  statute. "  2  And  in  a  case 
in  New  York,  the  Supreme  Court,  speaking  of  Wood  v.  Lake, 
and  of  two  cases  in  Maine,  Ricker  v.  Kelley,  and  Clement  v. 
Durgin,  which  are  among  those  to  which  we  have  just  referred, 
declared  that  they  held  doctrines  in  the  teeth  of  the  statute, 
and  were  excrescences  upon  the  law.3  The  later  decisions  in 
Maine  and  New  Hampshire  have  greatly  shaken  the  authority 
of  the  cases  thus  criticised,  and  are  in  accordance  with  the 
law  as  generally  laid  down.4 

§  30.  The  ground  upon  which  the  cases  holding  these  ex- 
treme doctrines  have  been  placed  is  that,  by  the  doing  of  the 
act  in  question,  the  license  became  executed  and  consequently 
irrevocable.  It  would  be  enough  to  say  that  the  framers  of 
the  Statute  of  Frauds  never  could  have  contemplated  so  obvi- 
ous and  simple  an  evasion  of  its  provisions  as  would  follow 
from  such  an  application  of  the  rule  in  regard  to  licenses. 
But,  in  point  of  fact,  the  license  being,  as  was  before  sug- 

1  Ricker  v.  Kelley,  1  Greenl.  (Me.)  117;  Ameriscoggin  Bridge  Co.  ». 
Bragg,  11  N.  H.  109;  Wilson  v.  Chalfant,  15  Ohio,  248;  Sullivant  r. 
Comm'rs  of  Franklin  Co.,  3  Ohio,  89;  Russell  r.  Hubbard,  59  111.  335; 
Lee  v.  McLeod,  12  Nevada,  280. 

8  Benedict  r.  Benedict,  5  Day  (Conn.)  468. 

8  Houghtaling  v.  Houghtaling,  5  Barb.  383,  per  Pratt,  P.  J.  See 
Cook  v.  Stearns,  11  Mass.  533  ;  Stevens  v.  Stevens,  11  Met  (Mass.)  251; 
Miller  v.  Auburn  and  Syracuse  R.  R.  Co.,  6  Hill  (N.  Y.)  61;  Hays  v. 
Richardson,  1  Gill  &  J.  (Md.)  366  ;  Wright  v.  Freeman,  5  Harr.  &  J. 
(Md.)  467;  Clute  v.  Carr,  20  Wise.  531;  Fryer  ».  Warne,  29  Wise. 
511. 

4  Moulton  v.  Faught,  41  Me.  298;  Pitman  v.  Poor,  38  Me.  237; 
Houston  v.  Laffee,  46  N.  H.  505;  Dodge  v.  McClintock,  47  N.  H.  383. 


38  STATUTE   OF  FRAUDS.  [CH.  II. 

gested,  continuous  in  its  operation,  cannot  be  said  to  be  capa- 
ble of  execution  by  any  one  act.  In  some  of  the  cases  it 
seems  to  be  admitted  that  it  may  be  revoked  after  such  in- 
choate execution,  on  paying  or  tendering  to  the  licensee  the 
expenses  he  has  incurred  therein.1  The  better  doctrine, 
however,  seems  to  be  that,  although  there  may  be  a  sum  due 
the  licensee  for  expense  or  damage,  payment  or  tender  of  the 
sum  is  not  a  condition  precedent  to  a  right  to  revoke.2 

§  31.  In  some  of  the  earlier  decisions,  both  English  and 
American,  the  licensee  was  protected  against  revocation, 
on  the  ground  that  the  licenser  was  estopped  to  revoke  a 
license  on  the  faith  of  which  the  licensee  had  incurred 
expense;  but  it  is  now  well  settled  that  the  doctrine  of 
estoppel  does  not  apply,  inasmuch  as  the  licensee  is  bound  to 
know  that  his  license  was  revocable,  and  that  in  incurring 
expense  he  acted  at  his  own  risk  and  peril.  Courts  of  equity 
also  have  repeatedly  declined  to  interfere  on  this  ground.3 

1  Ameriscoggin  Bridge  Co.  v.  Bragg,  11  N.  H.  109;  Clement  v.  Durgin, 
5  Greenl.  (Me.)  9. 

2  Jamieson  v.  Millemann,  3  Duer  (N.  Y.)  255.     And  see  Houston  v. 
Laffee,  46  N.  H.  505;  Fryer  v.  Warne,  29  Wise.  511.     A  licensee  has  a 
reasonable  time  after  revocation  to  remove  his  property  from  the  grantor's 
land.     Cornish  v.  Stubbs,  L.  R.  5  C.  P.  334;  Mellor  ».  Watkins,  L.  R.  9 
Q.  B.  400. 

8  Babcock  v.  Utter,  1  Abb.  (N.  Y.)  App.  Dec.  60.  See  Hetfield  v. 
Central  R.  R.  Co.,  29  N.  J.  L.  571;  Owen  v.  Field,  12  Allen  (Mass.)  457; 
Wingard  v.  Tift,  24  Ga.  179.  In  Pennsylvania,  where  the  common-law 
courts  have  equity  powers,  a  different  rule  seems  to  prevail;  although,  in 
a  late  case  in  that  State,  the  court,  while  recognizing  the  obligations  of 
previous  decisions,  says:  "  The  courts  of  this  State  have  gone  beyond  the 
rules  of  common  law,  and  beyond  the  rulings  of  courts  of  equity  else- 
where." Strong.  J.,  in  Huff  v.  McCauley,  53  Pa  St.  206.  A  similar 
statement  is  made  in  Jamieson  v.  Millemann,  3  Duer  (N.  Y.)  255.  See 
the  following  Pennsylvania  decisions:  Rerick  v.  Kern,  14  Serg.  &  R.  267; 
M'Kellip  v.  M'llhenny,  4  Watts,  317  ;  Swartz  v.  Swartz,  4  Pa.  St.  353 ; 
Le  Fevre  v.  Le  Fevre,  4  Serg.  &  R.  241.  See  also  Lane  v.  Miller,  27  Ind. 
534;  Cook  v.  Pridgen,  45  Ga.  331;  Williamston  &  Tarboro  R.  R.  Co.  v. 
Battle,  66  N.  C.  540  ;  Cumberland  Valley  R.  R.  Co.  v.  McLanahan,  59 
Pa.  St.  23;  National  Stock  Yards  v.  Wiggins  Ferry  Co.,  112  111.  384. 
But  see  Tufts  v.  Copen,  37  W.  Va.  623;  Flickinger  v.  Shaw,  87  Cal. 
126. 


CII.  II.]       LEASES  COVERED  BY  THE  STATUTE.  39 

§  31  a.  Wherever  a  verbal  agreement  is  made  by  which  an 
interest  in  another's  land  is  to  be  acquired,  whether  it  be  in 
form  a  license,  or  a  contract  for  an  interest  in  land,  and 
upon  the  faith  of  that  agreement  the  party  taking  it  enters 
into  possession,  and  makes  improvements,  or  otherwise  so 
changes  his  condition  that  equity  will  hold  him  entitled  to  a 
decree  affirming  his  right,  or  enjoining  his  grantor's  inter- 
ference with  it,  such  equity  is  a  good  defence  at  law  to  an 
action  by  the  grantor,  e.  g.  trespass,  interfering  with  the 
grantee's  possession  and  enjoyment,  in  those  States  where 
equity  is  administered  by  courts  of  law.1 

i  Petty  v.  Kennon,  49  Ga.  468;  Russell  v.  Hubbard,  59111.  335;  Tanner 
v.  Volentine,  75  111.  624;  Dillion  v.  Crook,  11  Bush  (Ky.)  321;  Simons 
v.  Morehouse,  88  Ind.  391 ;  Robinson  o.  Thrailkill,  110  Ind.  117.  See 
Flickinger  v.  Shaw,  87  Cal.  126. 


40  STATUTE   OF  FRAUDS.  [CH.  III. 


CHAPTER  III. 

LEASES   EXCEPTED    PROM   THE   STATUTE. 

8  32.  THE  second  section  of  the  statute,  which  saves  cer- 

O 

tain  descriptions  of  short  leases  from  its  operation,  does  not 
seem  to  have  been  precisely  presented  for  consideration  in 
any  English  case,  though  it  would  be  too  much  to  say,  as  has 
been  said  by  high  authority,  that  the  English  decisions  have 
not  alluded  to  it  at  all.1  There  are  many  instances  in  which 
the  courts  have  paid  attention  to  that  clause  of  it  which  pre- 
scribes three  years  as  the  maximum  duration  of  such  leases ; 
but,  strange  to  say,  they  have  to  all  appearance  wholly  disre- 
garded the  next  and  qualifying  clause,  which  provides  that 
those  short  leases  only  shall  be  excepted  "whereupon  the 
rent  reserved  to  the  landlord  during  such  term  shall  amount 
unto  two-third  parts  at  the  least  of  the  full  improved  value 
of  the  thing  demised."2  Indeed  in  one  instance  a  verbal 
lease  was  upheld  by  Chief  Justice  Raymond  solely  (according 
to  the  report)  on  the  ground  that  its  duration  was  limited  to 
three  years,  as  prescribed  by  the  second  section,  while  there 
is  nothing  in  the  case  to  show  that  the  rent  reserved  amounted 
to  two  thirds  of  the  value  of  the  demised  premises.3  That  it 

»  4  Kent,  Com.  115. 

a  In  Edge  v.  Strafford,  1  Cromp.  &  J.  391,  the  report  states  that  in  the 
trial  at  nisi  priux  the  fact  was  found  that  the  rent  reserved  amounted  to 
two  thirds  of  the  annual  value  of  the  tenement.  In  a  note  to  Coffin  v. 
Lunt,  2  Pick.  (Mass.)  70,  a  dissenting  opinion  of  Mr.  Justice  Putnam  is 
given,  which  is  very  instructive  on  the  point  stated  in  the  text.  For  the 
other  cases  referred  to  in  the  text  see  the  following  sections,  where  the 
construction  as  to  duration  of  leases  is  examined. 

>  Ryley  v.  Hicks,  1  Stra.  651. 


OH.   III.]  LEASES   EXCEPTED   FROM   THE   STATUTE.  41 

was  the  intention  of  the  parliament  which  enacted  this  sec- 
tion that  the  validity  of  verbal  leases  should  depend  entirely 
upon  their  limitation  to  three  years  from  the  making  cannot, 
of  course,  be  supposed;  as  they  explicitly  added  another 
requisite.  As  is  remarked  by  Sir  Edward  Sugden,  the  whole 
section  seems  to  have  been  inserted  under  the  impression 
that  such  a  short  lease,  at  nearly  rack  rent,  would  not  be 
a  sufficient  temptation  to  induce  men  to  commit  perjury ; 1 
and,  accordingly,  we  should  not  expect  to  see  any  such  case 
brought  before  the  courts,  if  the  second  section  were  con- 
strued according  to  its  language  and  clear  import.  This  sec- 
tion has  been  literally  re-enacted  in  only  a  few  States,  and 
in  consequence  has  not  often  been  made  the  subject  of  judicial 
remark.2  It  was  alluded  to  in  a  late  case  in  Georgia,  where 
the  building  of  a  house  on  a  piece  of  land  was  the  consid- 
eration of  the  lease,  and  the  court  said  that  though  the  im- 
provement might  very  possibly  be  equal  to  two  thirds  of  the 
improved  value  of  the  land,  yet  in  the  absence  of  proof  of 
such  value,  the  lease,  not  being  in  writing,  would  not  be  held 

1  Vend.  &  P.  93. 

2  See  Appendix  under  the  titles  of  the  different  States.     The  Revised 
Statutes  of  Massachusetts  make  no  exception  in  favor  of  short  leases,  and 
it  has  been  said  that  the  English  doctrine  respecting  tenancies  from  year 
to  year,  derived  from  parol  leases,  could  only  be  sustained  by  the  excep- 
tion in  the  English  statute;  and  that,  for  that  reason,  there  could  be  no 
tenancy  from  year  to  year  in  Massachusetts,  unless  by  a  lease  in  writing: 
Ellis  v.  Paige,  1  Pick.  43.     But  the  remark  npon  the  effect  of  the  second 
section  does  not  seem  to  have  been  essential  to  the  decision  of  the  case, 
and  the  dissenting  opinion  of  Mr.  Justice  Putnam,  approved  by  Mr.  Jus- 
tice Jackson,  contains  a  very  full  discussion  of  that  point,  and  its  reason- 
ing is  very  satisfactory  to  show  that  no  such  effect  has  been  given  to  the 
second  section  by  the  English  courts.     See  note  to  Coffin  v.  Lunt,  2 
Pick.  70.     Again,  in  the  case  of  Bolton  v.  Tomlin,  5  Ad.  &  E.   856, 
Lord  Denman  makes  the  remark  that  "  leases  not  exceeding  three  years 
have  always  been  considered  as  excepted  by  the  second  section  from  the 
operation  of  the  fourth,"  so  that  special  terms  in  a  contract  of  tenancy 
might  be  proved  by  parol,  though  an  action  could  not,  perhaps,  have  been 
brought  for  refusal  to  perform  the  contract.     See  post,  §  37  a.     But  the 
right  to  prove  such  special  terms  in  a  parol  lease  does  not  seem  to  be 
necessarily  dependent  upon  the  second  section.     See  post,  §  39. 


42  STATUTE   OF  FRAUDS.  [CH.    III. 

good  for  the  stipulated  time.  Even  there,  however,  as  the 
term  of  the  lease  exceeded  three  years,  the  court  did  not  find 
it  necessary  to  decide  any  question  upon  the  second  section ; 
and  the  reference  is,  perhaps,  only  useful  as  showing  that  the 
courts  of  that  State  are  ready  to  apply  it  to  its  full  extent 
when  a  proper  case  arises.1 

§  32  a.  In  two  cases  in  New  Jersey,  where  the  second  sec- 
tion has  in  terms  been  re-enacted,  the  provision  concerning 
rent  reserved  has  been  noticed,  and  its  importance  insisted 
upon.  In  the  first  of  these,  Birckhead  v.  Cummins,  Beasley, 
C.  J.,  notices  the  passage  from  Sugden,  quoted  in  the  pre- 
ceding section,  and  says  that  the  reservation  of  rent  to  the 
statutory  amount  was  a  circumstance  that  would  modify 
essentially  the  legal  character  of  the  transaction.  In  Gano 
v.  Vanderveer,  decided  very  soon  after,  failure  of  proof  that 
rent  was  so  reserved  prevented  a  recovery  upon  the  lease.2 

§  33.  But  although  there  appears  to  have  been  no  case  in 
England  where  a  verbal  lease  has  been  sustained,  as  coming 
within  the  whole  language  of  the  second  section,  yet,  as  has 
been  said,  there  are  many  in  which  the  courts  have  taken 
occasion  to  explain  that  part  of  it  which  limits  the  duration 
of  a  verbal  lease  to  three  years,  and  these  cases  will  be  in- 
structive in  getting  at  the  construction  of  such  limitations 
in  our  own  statutes.  In  Rawlins  v.  Turner  it  was  held  by 
Lord  Holt,  in  accordance  with  the  plain  words  of  the  section, 
that  the  three  years  were  to  be  computed  from  the  time  of  mak- 
ing the  agreement,  and  not  from  any  subsequent  day.3  And 
although  the  lease  is  to  commence  and  take  effect  at  a  future 
day,  yet  if,  from  the  time  of  making  the  agreement  until  the 
lease  expires,  the  interval  be  not  more  than  three  years,  the 

1  Cody  v.  Quarterman,  12  Ga.  386.     In  Scotland,  leases  of  land  exceed- 
ing the  term  of  a  year,  are  not  effectual  unless  in  writing  and  followed  by 
possession.     1  Bell's  Com.  20. 

2  Birckhead  v.  Cummins,  33  N.  J.  L.  44;    Gano  v.  Vanderveer,  34 
N.  J.  L.  293.     And  see  Union  Banking  Co.  v.  Gittings,  45  Md.  181. 

*  Rawlins  v.  Turner,  1  Ld.  Raym.  736.  See  also  Chapman  v.  Gray, 
15  Mass.  439;  Delano  v.  Montague,  4  Cush.  (Mass.)  42. 


CH.   III.]  LEASES   EXCEPTED   FROM   THE   STATUTE.  43 

statute  does  not  apply  to  it.1     These  two  rules  in  regard  to 
verbal  leases  are  very  plainly  settled. 

§  34.  A  question  has  arisen  in  New  York,  having  a  some- 
what important  relation  to  this  subject.  As  the  law  of  that 
State  originally  stood,  the  term  for  verbal  leases  was,  as  in 
England,  "three  years  from  the  making."  But  the  Revised 
Statutes  a  shortened  the  term  to  one  year,  and  omitted  the 
words  "from  the  making  thereof."  This  alteration  was  con- 
sidered by  the  Supreme  Court  of  that  State  in  Croswell  v. 
Crane,  and  it  was  held  upon  principle,  as  well  as  upon  refer- 
ence to  the  report  of  the  revisors  of  the  statutes,  that  a  verbal 
lease  for  one  year,  to  commence  in  future,  was  still  invalid, 
notwithstanding  the  alteration  in  the  laws.3  But  the  same 
question,  coming  before  the  Court  of  Appeals  in  the  follow- 
ing year,  was  decided  otherwise,  and  Croswell  v.  Crane  over- 
ruled. The  court  said  that  the  legislature  clearly  intended 
to  omit  the  requirement  which  existed  previously,  namely, 
that  the  lease  must  terminate  within  the  prescribed  time, 
reckoning  from  the  making;  and  that  their  intention  must  be 
carried  out,  such  omission  not  being  contrary  to  the  common 
law.4  This  decision  and  the  legislation  to  which  it  refers 
seem  to  consider  the  policy  of  the  statute  as  satisfied  by  pro- 
hibiting estates  for  a  longer  term  than  a  fixed  number  of 
years  from  being  created  by  word  of  mouth,  thus  regarding 
solely  the  important  nature  of  land  as  requiring  especial 
solemnities  for  its  transfer;  whereas  the  English  statute  and 
the  decisions  of  the  English  courts  clearly  look  also  to  the 
danger  of  admitting  oral  testimony  of  transactions  long  past, 
a  danger  which  they  seem  to  have  kept  constantly  in  mind  in 
interpreting  each  of  the  provisions  of  the  Statute  of  Frauds. 

i  Ryley  v.  Hicks,  1  Stra.  651. 

8  N.  Y.  Rev.  Stat.  Part  II.,  c.  vii.,  tit.  1,  §§  6,  8. 

8  Croswell  v.  Crane,  7  Barb.  191.     See  Sobey  v.  Brisbee,  20  Iowa,  105. 

*  Young  v.  Dake,  5  N.  Y.  463.  See  also  Taggard  v.  Roosevelt,  2  E.  D. 
Smith,  100 ;  Thomas  v.  Nelson,  69  N.  Y.  118.  In  Allen  v.  Devlin,  6  Bosw. 
1,  the  same  doctrine  is  applied  to  a  surrender.  The  case  is  affirmed,  nom. 
Smith  v.  Devlin,  23  N.  Y.  363. 


44  STATUTE   OF   FRAUDS.  [CH.   III. 

§  35.  The  operation  of  the  statute  as  to  the  duration  of 
verbal  leases  is  prospective ;  it  regards  only  the  time  which 
the  lease  has  yet  to  run.  Thus  where  a  lease  is  to  run  from 
year  to  year,  so  long  as  both  parties  please,  although,  when 
five  or  six  or  more  years  are  past,  it  may  be  said,  regarding  it 
retrospectively,  to  be  a  verbal  lease  for  that  number  of  years, 
yet  the  lease  is  good,  as  the  statute  only  looks  to  verbal 
leases  for  a  certain  number  of  years  to  come. 1  This  rule  of 
course  does  not  apply  to  leases  from  year  to  year,  for  and 
during  a  fixed  period  of  time  which  exceeds  the  limit 
allowed  to  verbal  leases ; 2  though  it  would  seem  to  hold  good 
where  it  rests  in  covenant  for  the  lessor  to  grant  a  fresh 
term  at  the  end  of  the  first,  and  so  on.3 

§  36.  In  estimating  the  prescribed  number  of  years,  the 
day  of  the  date  will  be  included  or  excluded  according  to  the 
nature  of  the  instrument  and  the  intention  of  the  parties.4 
In  Massachusetts  and  New  Hampshire  the  rule  is  that  if  the 
lease  is  expressed  to  be  from  a  day  certain,  that  day  is  not 
counted ;  but  if  it  is  so  expressed  as  by  implication  to  run 
from  the  date  of  the  making,  the  day  is  counted.6 

§  37.  The  case  of  Edge  v.  Strafford,  in  the  Exchequer, 
1831,  brought  up  the  interesting  question  whether  a  verbal 
lease  good  under  the  second  section  of  the  statute  came  within 
the  fourth  section  in  regard  to  contracts,  so  that  neither  party 
could  bring  action  for  not  giving  or  taking  possession  under 
it ; 6  and  several  of  the  text  writers  have  regarded  it  as  an 

1  Legg  v.  Strudwick,  2  Salk.  414;  Birch   v.  Wright,  1  T.  R.  378; 
Raynor  v.  Drew,  72  Cal.  307.     See  also  Pugsley  v,  Aiken,  11  N.  Y.  494; 
Fox  v.  Nathan,  32  Conn.  348. 

2  Plowd.  373;  Bro.  Tit.  Leases,  49 
8  Roberts  on  Frauds,  242,  note  (rf). 

*  4  Kent,  Com.  95  note;  Lysle  v.  Williams,  15  Serg.  &  R.  (Pa.)  135; 
Donaldson  v.  Smith,  1  Ashm.  (Pa.)  197;  Wilcox  v.  Wood,  9  Wend. 
(N.  Y.)  346. 

6  Atkins  v.  Sleeper,  7  Allen,  487 ;  Perry  v.  Provident  Insurance  Co., 
99  Mass.  162;  Keyes  v.  Dearborn,  12  N.  H.  52. 

6  Edge  v.  Strafford,  1  Cromp.  &  J.  391.  And  see  Delano  v.  Montague, 
4  Cush.  (Mass.)  42. 


CH.   III.]  LEASES   EXCEPTED   FROM  THE  STATUTE.  45 

authority  that  the  two  sections  should  be  thus  construed.1 
But  in  the  light  of  later  decisions  both  in  England  and  this 
country,  it  may  be  doubted  whether  there  is  any  such  rule, 
or  whether  this  case  is  any  authority  in  support  of  it.  The 
former  question  was  thoroughly  and  ably  discussed  by  Chief 
Justice  Beasley,  of  the  Supreme  Court  of  New  Jersey,  in  a 
case  presenting  a  similar  state  of  facts.  After  commenting 
upon  the  second  section  as  being  "  adequate  to  its  purpose 
and  complete  in  itself,"  he  proceeds  to  discuss  the  effect  of 
the  fourth  section  upon  it.  "It  cannot  be  denied,"  he  says, 
"that  a  lease  is  a  contract  concerning  an  interest  in  land; 
and  therefore  if  the  [fourth]  section  be  applicable  to  this 
class  of  cases  at  all,  such  a  contract  cannot  be  enforced.  The 
effect  consequently  would  be  that,  by  the  exception  in  the 
former  section,  an  interest  is  preserved,  which  is  annulled 
by  the  incongruous  operation  of  the  latter.  Nor  can  I  per- 
ceive the  propriety  of  the  distinction  that  the  latter  section 
applies  to  the  lease  only  in  its  condition  as  unexecuted  by 
the  entry  of  the  lessee ;  because  it  is  undeniable  that  after 
such  entry  it  is  as  much  a  contract  respecting  an  interest  in 
lands  as  it  was  before  the  doing  of  such  an  act  on  the  part 
of  the  tenant. "  The  language  of  the  second  section  is  then 
noticed,  "  leases  not  exceeding  the  term  of  three  years  from 
the  making  thereof,"  as  clearly  contemplating  the  existence 
of  present  parol  demises,  giving  a  right  of  possession  in 
futuro ;  for  the  duration  of  the  estate  is  limited  from  the 
date  of  making  the  lease,  and  not  from  that  of  going  into 
possession.  Finally  it  is  held  that  "by  a  just  construction 
of  the  Statute  of  Frauds,  a  parol  lease  not  exceeding  three 
years  from  the  making,  and  reserving  a  rent  in  the  proportion 
designated,  is  good  from  its  inception,  and  will  support  an 
action  for  the  rent  in  arrear,  without  any  entry  having  been 
made  upon  the  premises  by  the  lessee. "  In  the  case  of  Huff- 
man v.  Starks,  also,  the  question  of  the  effect  of  the  fourth 

1  Chit.  Cont.  p.  287;  Washb.  Real  Prop.  Bk.  I.,  c.  xi.,  §  2,  par.  8L 
See  Larkin  v.  A very,  23  Conn.  313. 


46  STATUTE   OF  FRAUDS.  [CH.  HI. 

section  upon  the  second  was  discussed,  and  the  Supreme 
Court  of  Indiana,  by  a  majority,  likewise  held  that  the  two 
were  quite  distinct,  and  were  to  be  so  regarded ;  and  a  con- 
flicting decision  of  the  same  court  was  in  substance  over- 
ruled.1 In  the  English  case  of  Bolton  v.  Tomlin,2  decided 
soon  after  Edge  v.  Strafford,  Lord  Denman  expressly  said  that 
leases  not  exceeding  three  years  have  always  been  considered 
as  excepted  by  the  second  section  from  the  operation  of  the 
fourth.  It  may  be  added  that  if  the  provision  of  the  fourth 
section  in  regard  to  interests  in  land  is  to  apply  to  the  leases 
excepted  by  the  second  section  the  provision  of  the  fourth 
section  in  regard  to  agreements  not  to  be  performed  within 
a  year  should  also  apply ;  and  this  would  render  the  second 
section  almost  nugatory.3 

§  37  a.  There  remains  to  be  discussed  the  question  whether 
Edge  v.  Strafford  is  in  conflict  with  the  authorities  just  cited. 
This  case,  and  that  of  Inman  v.  Stamp,  which  it  follows  and 
supports,  were  cited  and  discussed  by  the  courts  in  the  New 
Jersey  and  Indiana  cases.  In  the  former  it  was  observed 
that  the  action  in  Edge  v.  Strafford  was  not  upon  any  provi- 
sion of  the  lease  itself,  but  for  damages  for  the  breach  of  an 
alleged  contemporaneous  parol  agreement  that  the  lessee 
would  take  actual  possession  of  the  premises;  and  conse- 
quently that  the  ruling,  which  disallowed  any  action  on  such 
an  agreement,  even  if  correct,  did  not  affect  questions  arising 
on  the  lease  itself.  In  the  Indiana  case,  the  same  distinction 
is  noticed,  but  its  soundness  is  much  doubted.  Lord  Denman, 
in  Bolton  v.  Tomlin,  puts  the  cases  of  Edge  v.  Strafford,  and 
Inman  v.  Stamp  upon  a  different  ground,  assuming  that  they 
did  not  involve  parol  demises,  but  merely  agreements  to 
demise;  and  this  view  seems  to  be  supported  by  the  lari- 

1  Huffman  v.  Starks,  31  Ind.  474.     See  Young  t>.  Dake,  5  N.  Y.  463. 

2  Boltou  v.  Tomlin,  5  Ad.  &  E.  856.     See  Childers  v.  Talbott,  4  New 
Mexico,  168. 

8  Delano  v.  Montague,  4  Cush.  (Mass.)  42.  A.nd  see  Bateman  v. 
Maddox,  85  Tex.  546. 


CH.   III.]  LEASES   EXCEPTED   FROM   THE   STATUTE.  47 

guage  of  some  of  the  later  cases.1  Unless  some  distinction 
of  this  sort  does  exist  in  those  cases,  Lord  Denman's  decision 
seems  to  overrule  them,  and  it  may  fairly  be  doubted,  in  view 
of  the  language  used  by  Baron  Bayley  in  Edge  v.  Strafford, 
whether  he  had  any  such  distinction  in  his  mind.  Upon  the 
whole,  then,  it  would  seem  that  these  two  cases  should  be 
regarded  as  of  but  little  weight,  so  far  as  they  favor  that  rule 
of  interpretation  of  the  statute,  in  support  of  which,  as  we 
have  seen,  they  have  been  quoted;  and  in  view  of  the  author- 
ity against  it,  the  existence  of  any  such  rule  may  well  be 
doubted.2 

§  38.  The  English  Statute  of  Frauds  does  not  make  verbal 
leases  void,  but  allows  them  the  effect  of  estates  at  will. 
Such  a  tenancy  may  be  converted  into  a  tenancy  from  year 
to  year,  by  the  entry  of  the  lessor,  and  payment  of  rent,3 
provided  nothing  appears  to  show  that  the  payment  was  not 
made  or  received  as  rent,  and  provided  also  that  the  payment 
be  made  with  reference  to  a  year,  or  some  aliquot  part  of  it. 
For  where  payment  is  not  so  made,  the  tenancy  implied  will 


1  Wright  v.  Stavert,  2  El.  &  E.  721;  White  v.  Maynard,  111  Mass. 
250.     In  Missouri,  short  leases  are  expressly  excepted  from  that  section 
corresponding  to  the  fourth  section  of  the  English  statute.     Hoover  v. 
Pacific  Co.,  41  Mo.  App.  317. 

2  And  see  Coe  v.  Clay,  5  Bing.  440;  followed  in  Jenks  v.  Edwards,  11 
Exch.  775. 

8  Clayton  v.  Blakey,  8  T.  R.  3.  (Even  since  the  statute  8  &  9  Viet. 
c.  106,  §  3,  requiring  leases  to  be  by  deed,  there  seems  no  reason  to  doubt 
that  this  rule  is  the  same.  Chit.  Cont.  287.)  McDowell  v.  Simpson, 
3  Watts  (Pa.)  129;  People  v.  Rickert,  8  Cow.  (N.  Y.)  226;  Schuyler  v. 
Leggett,  2  Cow.  (N.  Y.)  660.  See  also  Duke  v.  Harper,  6  Yerg.  (Tenn.) 
280;  Morehead  v.  Watkyns,  5  B.  Mon.  (Ky.)  228;  Ridgely  v.  Stillwell, 
28  Mo.  400;  Drake  v.  Newton,  23  N.  J.  L.  Ill;  Taggard  v.  Roosevelt,  2 
E.  D.  Smith  (N.  Y.)  100;  Reeder  v.  Sayre,  6  Hun  (N.  Y.)  562;  affirmed, 
70  N.  Y.  180;  Hoover  v.  Pacific  Oil  Co.,  41  Mo.  App.  317;  Koplitz  ». 
Gustavus,  48  Wise.  48;  Blumenthal  v.  Bloomingdale,  100  N.  Y.  558; 
Coudert  t?.  Cohn,  118  N.  Y.  309;  Rogers  v.  Wheaton,  88  Tenn.  665;  Ohio 
and  Miss.  R.  R.  v.  Trapp,  4  Ind.  App.  Ct.  69.  See  also  Hammond  v. 
Dean,  8  Baxter  (Tenn.)  193;  Chicago  Attachment  Co.  v.  Davis  Machine 
Co.,  142  111.  171. 


48  STATUTE   OF  FKAUDS.  [CH.  HI. 

not  be  one  for  a  year,  but  for  a  quarter,  month,  or  week, 
according  to  the  intention  of  the  parties,  as  inferred  from  the 
times  of  payment.1  This  is  especially  so  in  the  interpreta- 
tion of  agreements  for  lodgings.2  The  mere  entry  of  the 
lessee  under  the  verbal  lease  will  not  be  sufficient  to  convert 
it  into  an  estate  from  year  to  year ;  there  must  also  be  pay- 
ment or  acknowledgment  of  rent.3  It  was  said  in  the 
Supreme  Court  of  Massachusetts  that  the  doctrine  as  to 
tenancy  from  year  to  year  seemed  very  clearly  to  depend  upon 

1  Camden  v.  Batterbury,  5  C.  B.  N.  s.  817;  Braythwayte  v.  Hitchcock, 
10  Mees.  &  W.  497;  Anderson  v.  Prindle,  23  Wend.  (N.  Y.)  619;  Barlow 
v.  Wainwright,  22  Vt.  88;  People  v.  Darling,  47  N.  Y.  666;  Creighton  v. 
Sanders,  89   111.  543;    Evans  v.    Winona  Lumber   Co.,  30   Minn.   515; 
Johnson  v.  Albertson,  51  Minn.  333;  Field  v.  Herrick,  14  Brad.  (111.  App.) 
181 ;  Steele  v.  Anheuser-Busch  Brewing  Ass.;  58  N.  W.  Hep.  (Minn.)  685. 

2  Wilson  v.  Abbott,  3  Bam.  &  C.  88. 

8  Doidge  v.  Bowers,  2  Mees.  &  W.  365;  Cox  v.  Bent,  5  Bing.  185.  In 
Pennsylvania,  where  there  is  no  statute  prohibiting  actions  upon  execu- 
tory contracts  for  land,  and  where  there  is  an  exception  in  the  second 
section  in  favor  of  leases  for  not  over  three  years,  Chief  Justice  Tilghman 
expressed  the  opinion  that,  according  to  adjudged  cases,  a  verbal  lease 
for  more  than  three  years  might  be  entirely  taken  out  of  the  statute  by 
delivery  of  possession,  and  that  it  certainly  would,  if  attended  by  im- 
provements by  the  lessee.  No  decision  was  required,  however,  or  given 
upon  the  point.  Jones  v.  Peterman,  3  Serg.  &  R.  543;  Farley  v.  Stokes, 
1  Sel.  Eq  Gas.  422,  is  to  the  same  effect.  But  the  case  of  Soles  v. 
Hickman,  20  Pa.  St.  180,  decided  in  1852,  and  which  has  been  referred 
to  above,  seems  to  be  irreconcilable  with  these  decisions;  for,  there 
being  no  written  evidence  of  the  creation  of  the  estate,  the  court  would 
not  decree  a  conveyance.  The  case  does  not  show  any  part-performance, 
and  the  opinion  does  not  indicate  what  would  be  the  effect  if  there  were 
any  shown.  In  Mountain  City  Association  v.  Kearns,  103  Pa.  St.  403,  it 
was  said  that  a  lease  of  the  character  under  discussion  followed  by  pos- 
session and  improvements  created  an  estate  at  will.  Such  an  estate,  it 
has- also  been  held,  would  be  converted  into  a  tenancy  from  year  to  year  by 
the  annual  payment  and  acceptance  of  rent.  Dumn  v.  Rothermel,  112 
Pa.  St.  272.  In  Kentucky  (Morehead  v.  Watkyns,  5  B.  Mon.  228),  where 
the  statute  simply  provides  that  no  estate  for  a  term  of  more  than  five 
years  shall  be  conveyed  without  writing,  etc.,  not  specifying  what  effect 
parol  leases  for  a  less  term  shall  have,  it  is  held  that  a  tenant  under  such 
a  lease  is  bound  to  the  duties  of  a  tenant  from  year  to  year.  See  also  in 
Indiana,  the  case  of  Nash  v.  Berkmeir,  83  Ind.  536. 


CH.  HI.]     LEASES  EXCEPTED  FROM  THE  STATUTE.        49 

the  exception  in  the  second  section  of  the  statute,  and  to  be 
sustained  only  upon  the  ground  of  that  exception.1  This  view 
receives  some  countenance  from  the  language  of  Lord  Kenyon 
in  Clayton  v.  Blakey,  where  he  says  that  what  was  consid- 
ered at  the  time  of  the  passage  of  the  statute  a  tenancy  at 
will  "  has  since  been  very  properly  construed  to  inure  as  a 
tenancy  from  year  to  year. "  2  Nevertheless,  it  is  quite  clear 
that  this  doctrine  is  much  older  than  the  Statute  of  Frauds, 
which,  in  giving  to  verbal  leases  of  certain  kinds  the  force  of 
estates  at  will,  left  it  to  the  common  law  to  apply  all  the 
incidents  of  that  estate,  including  its  convertibility  by  entry 
and  payment  of  rent  into  a  tenancy  from  year  to  year.3  The 
Supreme  Court  of  Massachusetts  determined,  however,  upon 
the  strength  of  the  absence  from  the  law  of  that  State  of  any 
exception  as  to  short  leases,  that  a  verbal  lease  was  to  be 
treated  strictly  as  a  lease  at  will,  and  not  as  from  year  to 
year,  and  the  same  law  prevails  in  Maine,  where  the  statute 
in  regard  to  leases  resembles  that  of  Massachusetts.4  In 
Missouri,  also,  short  leases  are  not  excepted,  but  it  has 
always  been  held  there  that  these  estates  may  be  converted 
into  tenancies  for  a. term  indicated  by  the  times  of  payment 
of  rent. 5 

§  39.  A  long  series  of  opinions  has  established,  both  in  this 
country  and  in  England,  that  where  the  statute  simply  declares 
a  verbal  lease  to  have  the  force  of  creating  an  estate  at  will, 
its  policy  is  satisfied  by  preventing  the  creation  by  word  only 


Ellis  v.  Paige,  1  Pick.  43. 

2  Clayton  v.  Blakey,  8  T.  R.  3. 

9  Such  an  estate  at  will,  arising  from  a  parol  demise,  and  convertible 
into  a  tenancy  from  year  to  year,  is  assignable.  Botting  v.  Martin,  1 
Camp.  317.  See  Elliott  v.  Johnson,  L.  R.  2  Q.  B.  120.  Where  such 
estates  are  not  convertible,  but  remain  estates  at  will  purely,  they  come 
under  the  general  rule  and  are  not  assignable.  Cunningham  v.  Holton, 
55  Me.  33;  King  v.  Lawson,  98  Mass.  309.  See  Whittemore  v.  Gibbs, 
24  N.  H.  484;  Austin  v.  Thompson,  45  N.  H.  113. 

4  Davis  v.  Thompson,  13  Me.  209;  Withers  v.  Larrabee,  48  Me.  570. 

5  Hammon  v.  Douglas,  50  Mo.  434. 

4 


50  STATUTE   OF  FRAUDS.  [CH.   III. 

of  estates  in  land  above  a  certain  quality;  and  so  long  as 
parties  do  in  fact  proceed  as  landlord  and  tenant  under  such 
restrictions  in  point  of  time  as  the  statute  imposes,  it  allows 
full  effect  and  obligation  to  the  covenants  and  stipulations 
which  they  see  fit  to  embrace  in  their  agreement ;  so  far  as 
these  are  applicable  to,  or  not  inconsistent  with,  a  tenancy 
for  the  time  implied.1  For  instance,  the  covenant  to  repair 
contained  in  such  a  lease  will  be  binding,2  as  also  the  stipu- 
lations as  to  the  amount  of  rent  and  time  of  payment,3  and  as 
to  the  time  when  the  tenant  shall  quit,  whether  it  be  at  a  time 
fixed,  or  upon  a  certain  contingency.4  The  question  whether 
covenants  in  an  original  lease  apply  to  a  tenancy  from  year 
to  year,  created  after  the  term  by  parol,  is  for  the  jury.6 

§  40.  It  is  obvious  that  where  the  statute  in  any  particular 
State  denies  to  the  parol  agreement  of  the  parties  even  the 
efficacy  of  fixing  the  terms  of  the  tenancy  which  may  arise 
by  their  subsequent  acts,  and  the  time  of  determining  it,  still, 
if  the  lessee  has  actually  used  and  occupied  the  land,  he 
will  be  liable  on  his  implied  promise  to  pay  for  such  use  and 
occupation.  And  in  such  cases,  recourse  may  be  had  to  the 
original  agreement  as  evidence  of  the  value  of  such  use  and 
occupation.6  But  where  defendant  entered  under  a  verbal 
agreement  for  an  annual  rent  of  four  hundred  dollars,  pay- 
able quarterly,  no  time  of  terminating  the  tenancy  being 

1  People  v.   Rickert,  8  Cow.  (N.  Y.)  226.     See  Hand  v.  Hall,  2  Ex. 
Div.  355.     See  Man  v.  Ray,  50  111.  App.  Ct.  415. 

2  Beale  ».  Saunders,  3  Bing.  N.  R.  850 ;  Richardson  v.  Gifford,  1  Ad. 
&  E.  52;  Halbut  v.  Forrest  City,  34  Ark.  246;   Brockway  v.  Thomas,  36 
Ark.  518. 

8  Barlow  v.  Wainwright,  22  Vt.  88;  De  Medina  v.  Poison,  Holt,  49; 
Norris  v.  Morrill,  40  N.  H.  395. 

*  Rigge  v.  Bell,  5  T.  R.  471 ;  Schuyler  v.  Leggett,  2  Cow.  (N.  Y.) 
660 ;  Hollis  r.  Pool,  3  Met.  (Mass.)  350.  See  also  Richardson  v.  Gifford, 
1  Ad.  &  E.  52;  Tress  v.  Savage,  4  El.  &  B.  36;  Currier  v.  Barker,  2 
Gray  (Mass.)  226. 

6  Oakley  v.  Monk,  3  Hurlst.  &  C.  705. 

6  De  Medina  v.  Poison,  Holt,  47.  See  Morehead  v.  Watkyns,  5  B. 
Mon.  (KyJ  228. 


CII.   III.]  LEASES   EXCEPTED   FROM   THE   STATUTE.  51 

fixed,  and  the  lessor  sold  the  premises  between  two  quarter- 
days,  it  was  held  that  no  rent  was  due  by  the  contract  for 
occupation  since  the  last  quarter-day,  because  the  tenancy 
was  determined  before  the  day  of  payment.  Neither  was 
there  any  implied  promise,  the  tenancy  being  under  an  ex- 
press agreement  of  the  parties,  to  pay  for  use  or  occupation.1 

1  Fuller  v.  Swett,  6  Alleu  (Mass.)  219,  n. ;  Robinson  v.  Deering,  56 
Me.  357. 


52  STATUTE   OF  FRAUDS.  [CH.   IV. 


CHAPTER  IV. 

ASSIGNMENT   AND   SURRENDER. 

§  41.  As  the  first  section  of  the  Statute  of  Frauds  pre- 
scribes certain  formalities  in  the  creation  of  interests  in  land, 
the  third  section  is  directed  to  the  assignment,  grant,  or  sur- 
render of  those  interests  after  their  creation.  The  applica- 
tion of  the  statute  to  such  transfers,  with  the  formalities  it 
requires,  will  be  the  subject  of  the  present  chapter.1 

§  42.  The  provision  of  the  third  section,  with  regard  to  the 
assignment,  grant,  or  surrender  of  existing  terms,  is  that,  to 
be  valid,  it  shall  be  either  by  deed  or  by  note  in  writing.  In 
view  of  this  alternative  provision,  it  has  generally  been  held 
that,  unless  a  seal  is  essential  to  the  creation  of  the  term,  it 
need  not  appear  upon  the  assignment,  but  that  a  note  in 
writing  is  sufficient ; 2  and  this  is  also  true,  where  the  estate 
to  be  surrendered  might  have  been  created  without  deed, 
though  in  point  of  fact  so  created.3 

1  As  was  pointed  out  by  the  court,  in  a  case  in  Xorth  Carolina,  an 
assignment  of  a  term  requiring  a  writing  to  create  it  could  not,  in  reason, 
be  verbally  made,  even  though  the  statute  contained  no  provision  with 
regard  to  the  making  of  such  assignment ;  for  if,  as  is  clear,  the  statute 
against  parol  leases  applies  to  those  which  are  carved  out  of  a  term,  as 
well  as  out  of  the  inheritance,  it  cannot  be  that  a  long  termor  can  assign 
his  whole  interest  verbally,  when  he  could  not  underlet  part  of  it  without 
writing.     Briles  v.  Pace,  13  Ired.  Law,  279. 

2  Holliday  v.  Marshall,  7  Johns.  (N.  Y.)  211 ;  Esty  ».  Baker,  48  Me. 
495;  Boyce  v.  Bakewell,  37  Mo.  492.    See  Dixon  v.  Buell,  21  111.  203     See 
also  Sanders  r.  Partridge,  108  Mass.  556,  in  which  the  whole  subject  is 
fully  considered,  and  which,  as  to  the  point  in  question,  appears  to  be  in 
conflict  with  the  earlier  cases  of  Wood  r.  Partridge,  11  Mass.  488  ;  Brewer 
v.  Dyer,  7  Cush.  337;  Bridgham  v.  Tileston,  5  Allen,  371. 

8  Roberts  on  Frauds,  248,  249 ;  Farmer  v.  Rogers,  2  Wils.  26 ;  Gwyn 
v.  Wellborn,  1  Dev.  &  B.  (N.  C.)  Law,  313;  Allen  v.  Jaquish,  21  Wend. 
(N.  Y.)  628;  Peters  v.  Barnes,  16  Ind.  219. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  53 

§  43.  The  statute  has  prescribed  no  form  of  words  for  the 
surrender  of  an  estate,  but  it  may  still  be  accomplished  by 
any  language  fairly  importing  an  intention  to  yield  up  the 
estate,  provided  it  be  put  in  writing  signed  by  the  party  or  his 
agent.1  Nor  is  it  necessary  that  there  should  be  any  formal 
redelivery  or  cancelling  of  the  deed  or  other  instrument  which 
created  the  estate  to  be  surrendered.2  It  has  been  contended 
that  a  recital  in  a  second  lease,  that  it  was  in  consideration 
of  the  surrender  of  a  prior  one,  was  a  sufficient  note  in  writing 
of  such  surrender,  to  satisfy  the  requirements  of  the  statute; 
but  the  judges  of  the  Queen's  Bench,  when  the  question 
arose  before  them,  were  clearly  of  opinion  that  the  fact  of 
a  previous  surrender  must  be  specifically  found ;  which  fact 
the  recital  by  no  means  imported,  for  the  recital  would  be 
sufficiently  accurate  if  the  surrender  were  merely  by  opera- 
tion of  law,  arising  from  the  reception  of  the  second  lease.3 
And  in  a  decision  of  the  Court  of  Exchequer  to  the  same 
effect,  Parke,  B.,  remarked  upon  the  custom,  at  the  renewing 
of  a  lease,  of  reciting  that  it  is  in  consideration  of  the  sur- 
render of  the  old  one ;  from  which,  he  said,  it  was  clear  that 
such  a  recital  could  not  import  certainly  that  the  interest  of 
a  lessee  in  a  prior  lease  had  been  in  fact  surrendered.4 

1  Weddall  v.  Capes,  1  Mees.  &  W.  50;  Greider's  Appeal,  5  Pa.  St.  422; 
Strong  v.  Crosby,  21  Conn.  398 ;  Gwyn  v.  Wellborn,  1  Dev.  &  B.  (N.  C.) 
Law,  313;  Shepard  v.  Spaulding,  4  Met.  (Mass.)  416;  where  the  word 
"  reconvey  "  was  held  a  good  word  of  surrender.     After  a  written  lease 
for  ten  years  had  been  executed,  it  was  verbally   agreed  between  the 
parties,  that  if  either  became  dissatisfied  with  the  other  before  the  ten 
years  expired,  the  lease  should  be  at  an  end.     It  was  held  that  such  an 
agreement,  acted  upon  by  one  of  the  parties,  though  it  might  not  tech- 
nically amount  to  a  surrender,  was  void,  because  the  direct  effect  of 
it  was  to  change  a  lease  for  years  into  a  mere  estate  at  will.     May- 
berry  v.  Johnson,  3  Green  (N.  J.)  Law,  116;  Brady  t».  Peiper,  1  Hilt. 
(N.  Y.)  61. 

2  Greider's  Appeal,  5  Pa.  St.  422.     See,  in  regard  to  the  cancellation 
of  instruments  of  conveyance,  post,  §§  59,  60. 

8  Roe  v.  Abp.  of  York,  6  East,  86. 

4  Lyon  v.  Reed,  13  Mees.  &  W.  285.  A  recital  in  a  second  lease  that 
it  was  granted  "  for  the  consideration  of  the  present  lease,  and  which  is 


54  STATUTE   OF  FEAUDS.  [CH.   IV. 

§  44.  The  cancellation  or  destruction  of  the  indenture  has 
no  operation  as  a  surrender  of  a  lease  of  lands.  Such  was 
the  opinion  given  extra-judicially  by  Lord  Chief  Baron 
Gilbert,  in  the  case  of  Magennis  v.  MacCollogh;  "because," 
he  says,  "the  intent  of  the  Statute  of  Frauds  was  to  take 
away  the  manner  they  formerly  had  of  transferring  interests 
in  lands,  by  signs,  symbols,  and  words  only,  and,  therefore, 
as  a  livery  and  seisin  of  a  parol  feoffment  was  a  sign  of  pass- 
ing the  freehold,  before  the  statute,  so  I  take  it  that  the 
cancellation  of  a  lease  was  a  sign  of  a  surrender,  before  the 
statute,  but  is  now  taken  away  unless  there  be  a  writing 
under  the  hand  of  the  party. " 1  The  same  rule  was  after- 
wards affirmed  by  all  the  judges  of  the  Common  Pleas,  and  is 
now,  as  a  general  principle,  adopted  in  England  and  the  United 
States.2  Where,  however,  a  lessee  voluntarily  delivered  up 
and  destroyed  his  lease,  and  afterwards  claimed  under  it,  it 
was  held  in  New  York  that  he  ought  not  to  be  allowed  to 
avail  himself  of  any  obscurity  or  uncertainty  in  respect  to 
its  contents,  but  that  every  difficulty  and  presumption  ought 
to  be  turned  against  him.3  We  shall  have  occasion,  before 
passing  from  the  subject  of  conveyances  as  affected  by  the 
statute,  to  consider  rather  more  at  large  the  effect  of  alter- 
ing, destroying,  or  redelivering  title-deeds,  and  until  then 
reserve  the  examination  of  certain  further  modifications  of 
the  rule.4 


hereby  surrendered  accordingly,"  was  held  to  constitute  a  good  surrender, 
by  note  in  writing,  in  Doe  »».  Forwood,  3  Q.  B.  627.  But  this  case  was 
explained  in  Doe  t>.  Courtenay,  11  Q.  B.  702,  where  the  court,  by  Cole- 
ridge, J.,  said  that  when  a  surrender  was  expressed  to  be  founded  upon 
a  new  grant,  the  validity  of  the  surrender  would  be  conditional  upon  the 
validity  of  the  new  grant. 

1  Magennis  v.  MacCollogh,  Gilb.  Cas.  235. 

2  Bolton  v.  Bishop  of  Carlisle,  2  H.  Bl.  259 ;  Walker  v.  Richardson, 
2  Mees.  &  W.  882;  Roe  v.  Abp.  of  York,  6  East,  86;  Doe  v.  Thomas,  9 
Barn.  &  C.  288;   Rowan  v.  Lytle,   11  Wend.    (N.   Y.)   616;    Ward  v. 
Lumley,  5  Hurlst.  &  N.  88,  and  note  in  American  edition. 

8  Jackson  v.  Gardner,  8  Johns.  (N.  Y.)  394. 
4  See  post,  §§  59,  60. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  55 

§  45.  It  will  be  observed  that  the  language  of  the  third 
section  of  the  statute,  providing  for  the  assignment  and  sur- 
render of  estates  in  land,  is  general,  and  contains  no  express 
reservation  in  favor  of  short  leases.  It  declares  that  "no 
leases,"  etc.,  "shall  be  assigned  or  surrendered  unless  it  be 
by  deed  or  note  in  writing. "  Proceeding  upon  the  ground  of 
this  generality  of  language,  the  English  courts  have  uniformly 
held  that  even  such  short  terms  as  could,  by  the  statute  or 
otherwise,  be  created  verbally,  could  not  be  assigned  or  sur- 
rendered without  writing.  This  doctrine  appears  to  have 
been  first  held  at  nisi  prius  in  1818,  in  the  case  of  Botting  v. 
Martin. 1  It  was  argued  that  as  a  lease  from  year  to  year 
could  be  originally  made  without  writing,  there  was  no  rea- 
son why  it  could  not  be  assigned  without  writing,  and  that 
upon  a  comprehensive  view  of  the  three  first  sections  of  the 
statute  it  must  be  held  that  the  requirements  of  the  third  sec- 
tion applied  only  to  those  estates  which  were  covered  by  the 
first  and  second  taken  together.  The  decision  of  the  court  to 
the  contrary  is  very  briefly  given,  the  report  merely  stating 
that,  "  Sir  A.  McDonald,  C.  B.,  held  that  the  assignment  was 
void  for  not  being  by  deed  or  note  in  writing,  and,  therefore, 
nonsuited  the  plaintiff. "  In  the  following  year,  also  at  nisi 
prius,  in  Mollett  v.  Brayne,  Lord  Ellenborough  ruled  that  a 
tenancy  from  year  to  year,  created  by  parol,  was  not  deter- 
mined by  a  parol  license  from  the  landlord  to  the  tenant  to 
quit  in  the  middle  of  a  quarter,  and  the  tenant's  quitting 
accordingly ;  chus  affirming  the  rule  laid  down  in  Botting  v. 
Martin,  but  without  entering  into  the  reasons  to  support  it.2 
In  Whitehead  v.  Clifford,  a  few  years  afterwards,  in  the  Com- 
mon Pleas,  Gibbs,  C.  J.,  made  the  remark,  that,  "the  clause 
of  the  Statute  of  Frauds  which  restricted  estates  created  by 
parol  to  three  years  had  nothing  to  do  with  that  which  required 
surrenders  to  be  in  writing ; "  but  the  case  was  determined 

1  Dotting  v.  Martin,  1   Camp.  317.     But  see  Ponltney  v.  Holmes,  1 
Stra.  405;  commented  upon  in  Barrett  v.  Ralph,  14  Mees.  &  W.  348. 

2  Mollett  v.  Brayne,  2  Camp.  103. 


56  STATUTE   OF  FRAUDS.  [CH.   IV. 

upon  another  point  than  the  efficacy  of  the  verbal  surrender.1 
In  the  case  of  Doe  v.  Ridout,  which  was  next  decided  in  Eng- 
land, it  was  said  that  the  lease  "  cannot  be  determined  except 
by  legal  notice  to  quit,  or  legal  surrender,  '*  and  a  parol  sur- 
render was  clearly  regarded  as  invalid.2  Thomsons.  Wilson 
followed,  where  it  was  determined  by  Lord  Ellenborough,  at 
nisiprius,  that  a  verbal  agreement  to  determine  a  tenancy  (but 
whether  it  was  a  parol  lease  or  not  the  case  does  not  show)  in 
the  middle  of  a  quarter  was,  as  a  parol  surrender,  not  binding.3 
From  a  view  of  the  foregoing  cases  there  seems  no  room  for 
doubt  as  to  the  prevailing  doctrine  in  England  on  this  ques- 
tion. At  the  same  time,  we  must  remark  that  they  appear 
to  have  followed  one  another,  upon  mere  authority,  and  that 
none  of  them,  as  reported,  is  put  upon  any  other  ground.4 

§  46.  In  the  American  courts  the  point  has  several  times 
arisen,  and  different  conclusions  arrived  at  in  different  States. 
In  Pennsylvania  (where  the  three  first  sections  of  the  statute 
are  re-enacted,  with  the  exception  of  the  clause  in  regard  to 
rent  reserved  in  the  second  section),  Gibson,  C.  J.,  in  deliv- 
ering the  opinion  of  the  Supreme  Court,  very  ably  argues 
against  the  English  construction  as  follows :  "  Why  the  legis- 
lature should  have  purposely  contravened  a  common-law 
maxim  by  requiring  a  matter  to  be  dissolved  by  writing, 
which  they  allowed  to  be  created  by  verbality,  it  is  for  them 
who  insist  upon  the  distinction  to  explain.  An  intent  to 
establish  it  would  have  been  a  legislative  absurdity  which  is 
not  lightly  to  be  imputed.  What  greater  mischief  there  can 
be  in  a  verbal  surrender  or  transfer  than  there  is  in  a  verbal 
constitution  of  a  lease  has  not  been  shown,  and  it  is  not  to  be 

1  Whitehead  v.  Clifford,  5  Taunt.  518. 

2  Doe  v.  Ridout,  5  Taunt.  519. 

8  Thomson  v.  Wilson.  2  Stark.  379.  Lord  Ellenborough  said,  in  the 
course  of  his  opinion,  that  he  could  not  distinguish  this  case  from  Mollett 
v.  Brayne,  supra. 

4  In  Barrett  v.  Rolph,  14  Mees.  &  W.  348,  although  the  question  was 
not  directly  passed  upon,  it  was  regarded  by  both  the  court  and  the  counsel 
as  entirely  settled. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  57 

supposed  that  the  legislature  meant  to  establish  a  distinction 
without  a  reason  for  it.  The  apparent  difference  in  the  pre- 
scribed forms  of  constituting  and  surrendering  arises  from 
the  generality  of  the  words  predicated  by  the  latter,  and 
ostensibly  with  leases  written  or  unwritten,  without  discrimi- 
nation. But  that  they  were  intended  for  the  surrender  or 
transfer  of  a  lease  in  which  writing  was  made  a  necessary 
ingredient,  is  evident  from  the  fact  that  there  is  no  purpose 
which  requires  writing  in  a  surrender  or  transfer  which  does 
not  equally  require  it  in  the  act  of  constitution."1  In 
Greider's  Appeal,  the  same  court,  upon  the  strength  of  this 
language,  declared  the  law  to  be  settled  for  Pennsylvania,  that 
an  oral  surrender  of  a  term  for  less  than  three  years  was 
good ; 2  but  in  neither  of  these  cases  was  the  point  necessary 
to  the  decision.  In  the  first,  it  was  held  that  the  facts 
showed  a  surrender  by  operation  of  law  (which  is  expressly 
excepted  by  the  statute),  and  in  the  second,  the  surrender  was 
actually,  as  the  opinion  states,  made  in  writing.  In  Con- 
necticut, also,  it  seems  to  have  been  considered  that  a  lease 
from  year  to  year  could  be  surrendered  orally ;  but  the  report 
of  the  case  in  which  this  appears  is  somewhat  obscure,  and 
the  decision  is  that  there  was  no  such  surrender  shown.3  The 
States  of  New  York  and  Delaware  have  both  followed,  without 
discussion,  the  English  construction ; 4  and,  upon  the  whole, 
it  must  be  admitted  that  the  weight  of  authority  is  to  the 
effect  that,  the  statute  itself  being  unqualified  in  this  respect, 
no  qualification  is  to  be  ingrafted  upon  it  by  construction  or 
from  the  common  law.  The  doctrine  seems  to  stand  upon  the 

i  McKinney  v.  Reader,  7  Watts,  123. 

3  Greider's  Appeal,  5  Pa.  St.  422;  Kiteser  v.  Miller,  25  Pa.  St.  481. 
And  see  Tate  v.  Reynolds,  8  Watts  &  S.  91. 

8  Strong  v.  Crosby,  21  Conn.  398.     So  in  Missouri.     Koenig  v.  Miller 
Brewery  Co.,  38  Mo.  App.  182. 

4  Rowan  v.  Lytle,  11  Wend.  616;  Logan  v.  Barr,  4  Harr.  546.     And 
see  Lamar  v.  McNamee,  10  Gill  &  J.  116;  Chicago  Attachment  Co.  v. 
Davis  Sewing  Machine  Co.,  142  111.  171;  Briles  v.  Pace,  13  Ired.  Law, 
279;  Johnson  v.  Reading,  36  Mo.  App.  306. 


58  STATUTE   OF   FRAUDS.  [CH.   IV. 

literal  language  of  the  third  section,  and  to  be,  so  far  as 
reported  cases  show,  without  any  distinct  foundation  in  prin- 
ciple. In  many  of  our  States,  where  the  law  provides  that 
leases  must  be  surrendered  by  writing,  the  question  has  yet 
to  be  decided ;  for  it  is  conceived  that  it  is  not  necessarily 
connected  with  any  statutory  reservation  of  short  leases,  and 
that  the  English  cases  are  not  to  be  so  limited ;  but  that  it 
may  arise  in  regard  to  any  lease  which  may  be  verbally 
created,  whether  at  will,  or  from  year  to  year,  or  for  a  term 
of  years  allowed  by  statute.1 

§  47.  Upon  the  question  whether  a  surrender  must  have 
an  immediate  operation,  or  may  take  effect  in  futuro,  there 
is  an  apparent  conflict  in  the  English  cases.  It  is  true  that 
the  Court  of  Exchequer  has  once  directly  decided2  that  a 
surrender  could  not  be  made  to  take  effect  in  futuro,  but  the 
grounds  of  that  conclusion  are  not  stated,  and  the  authorities 
referred  to  hardly  sustain  it.  One  of  them,  a  case  decided 
two  years  before,  also  in  the  Exchequer,  was  upon  a  written 
surrender  to  take  effect  on  a  future  day,  and  on  condition  of 
a  certain  sum  of  money  being  paid.  It  did  not  appear  that 
the  condition  had  been  performed,  and  it  was  held  that  the 
surrender  had  not  operated ;  but  Baron  Parke  expressed  his 
opinion  that  it  should  appear  to  be  the  intention  of  the  par- 
ties that  the  term  should  immediately  cease,  in  order  to  make 
a  valid  surrender.3  Another  case  referred  to  in  support  of 
this  doctrine  is  that  of  Johnstone  v.  Hudlestone,  in  the 
Queen's  Bench,  where  an  insufficient  notice  to  quit  was 
verbally  given  by  the  tenant  and  accepted  by  the  landlord; 
and  there,  so  far  from  deciding  that  there  could  be  no  surren- 

1  In  New  York,  where  the  statute  requires  writing  for  the  surrender  of 
"  any  estate  or  interest  in  lands  other  than  leases  for  a  term  not  exceed- 
ing one  year,"  it  is  held  that  if  less  than  a  year  remain  of  a  lease  for 
more  than  a  year,  such   unpxpired  term  may  be  surrendered  without 
writing.     Smith  v.  Devlin,  23  N.  Y.  364 ;  on  appeal  from  the  Superior 
Court,  nom.  Allen  v.  Devlin,  6  Bosw.  1. 

2  Doe  i>.  Milward,  3  Mees.  &  W.  328. 
8  Weddall  v.  Capes,  1  Mees.  &  W.  50. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  59 

der  to  operate  infuturo,  one  of  the  judges  declined  to  give  an 
opinion  upon  the  point,  and  the  other  expressed  his  opinion 
that,  if  the  acceptance  by  the  landlord  had  been  in  writing, 
it  would  have  been  a  good  surrender. l  On  the  other  hand, 
it  was  stated  by  the  court,  at  nisi  prius,  in  Aldenburgh  v. 
Peaple,  where  a  tenant  from  year  to  year  gave  an  irregular 
notice  to  quit,  that  if  the  notice  was  in  writing  and  signed 
by  the  tenant,  the  landlord  might  treat  it  as  a  surrender  of  the 
tenancy.2  In  the  more  recent  cases  of  Williams  v.  Sawyer, 
in  the  Common  Pleas,3  Nickellsv.  Atherstone,  in  the  Queen's 
Bench,4  and  Foquet  v.  Moor,  in  the  Court  of  Exchequer,6 
the  question  seems  to  have  been  treated  as  unsettled.  In 
the  Supreme  Court  of  New  York  the  contrary  doctrine  to 
that  of  Doe  v.  Milward  has  been  held,  and  supported  by 
reasoning  which  appears  satisfactory.  An  unsealed  agree- 
ment was  made  by  a  lessee,  to  relinquish,  upon  failure  to 
perform  certain  stipulations,  a  lease  previously  executed  under 
seal,  and  it  was  decided  that  the  agreement,  though  inopera- 
tive as  a  defeasance  for  want  of  a  seal,  was  valid  as  a  contin- 
gent surrender.  Cowen,  J.,  in  delivering  the  judgment  of 
the  court,  said  that  a  surrender,  when  complete,  "is,  as  it 
were,  a  re-demise.  It  may  be  made  upon  condition,  that  is, 
to  become  void  upon  condition;  and,  though  no  case  goes  so 
far  as  to  say  that  a  surrender  may  be  made  to  become  good 
upon  condition  precedent,  yet  there  seems  to  be  no  objection 
to  that  in  principle,  if  the  interest  surrendered  be  not  a  free- 
hold. That  cannot  in  general  be  granted  to  take  effect  in 
futuro,  but  a  term  for  years  can.  The  surrender  of  a  term, 
to  operate  in  futuro,  is  equally  free  of  the  objection.  Con- 
tracts of  parties,  whether  by  deed  or  otherwise,  should  always 


1  Johnstone  v.  Hudlestone,  4  Barn.  &  C.  922. 

2  Aldenburgh  n.  Peaple,  6  Carr.  &  P.  212. 
8  Williams  v.  Sawyer,  3  Brod.  &  B.  70. 

«  Nickells  v.  Atherstone,  10  Q.  B.  944. 
6  Foquet  v.  Moor,  7  Exch.  870. 


60  STATUTE   OF   FRAUDS.  [CH.   IV. 

take  effect  according  to  their  real  intent,  if  that  be  possible 
consistently  with  the  rules  of  law. "  1 

§  48.  It  is  necessary  to  a  correct  understanding  of  this 
branch  of  the  statute,  that  we  consider,  as  briefly  as  may  be, 
whdt  are  those  surrenders  by  act  and  operation  of  law,  which 
are  expressly  excepted  from  it.  In  an  important  case  in  the 
Court  of  Exchequer,  it  was  said  that  the  term  "surrender 
by  act  and  operation  of  law"  is  properly  applied  to  cases 
where  the  owner  of  a  particular  estate  had  been  a  party  to 
some  act,  the  validity  of  which  he  is  by  law  afterwards 
estopped  form  disputing,  and  which  would  not  be  valid  if  his 
particular  estate  continued  to  exist.2  The  great  majority  of 
cases,  however,  appear  to  place  such  surrenders  upon  the 
broader,  and  on  the  whole  more  satisfactory  ground  of  acts 
done  or  participated  in  by  the  lessee,  from  which  is  to  be  pre- 
sumed a  clear  intention  that  his  previous  estate  shall  cease.3 
The  most  obvious  instance  under  the  first  definition  given 
above  of  these  surrenders,  and  one  which  is  said  by  Mr. 
Roberts  to  be  the  proper  example  of  a  surrender  by  act  and 
operation  of  law,  is  where  a  lessee  for  life  or  years  accepts 
from  his  landlord  a  new  and  valid  lease  of  the  same  prem- 
ises, to  take  effect  during  the  time  limited  for  the  first 
tenancy.  By  accepting  such  a  lease  he  admits  the  capacity 
of  his  landlord  to  make  it,  which  capacity  could  not  exist  if 
the  old  tenancy  were  not  first  determined.4 

§  49.  If  the  second  lease  is  void,  and  the  lessee  takes  noth- 
ing under  it,  a  surrender  of  the  first  one  will  not  result, 
whichever  definition  of  surrenders  by  operation  of  law  we 

1  Allen  ».  Jaquish,  21  Wend.  635.     See  Shep.  Touch.  307 ;  Wood! . 
Land.  &  T.  141;  Coupland  v.  Maynard,  12  East,  134;  Allen  v.  Devlin  j 
6Bosw.  (N.  Y.)  1. 

2  Lyon  v.  Reed,  13  Mees.  &  W.  285. 

8  Davison  v.  Stanley,  4  Burr.  2210;  Wilson  v.  Sewell,  4  Burr.  1975; 
Goodright  v.  Mark,  4  Maule  &  S.  30;  Donellan  v.  Reed,  3  Barn.  &  Ad. 
899;  Roberts  on  Frauds,  259. 

4  Lyon  v.  Reed,  13  Mees.  &  W.  285;  Van  Rensselaer  v.  Penniman, 
6  Wend.  (N.  Y.)  569. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  61 

adopt ;  for  the  lessee  cannot  be  said  to  be  estopped  to  dis- 
pute the  validity  of  an  act  equally  void  whether  his  old  term 
ceased  or  continued,  nor  can  he  be  presumed  to  intend  to 
surrender  his  previous  tenancy  and  get  nothing  in  return. 1 
And  it  is  still  farther  settled,  that  if  the  second  lease  be  not 
good  and  sufficient  to  pass  an  interest  according  to  the  con- 
tract and  intention  of  the  parties,  the  acceptance  of  it  is  no 
implied  surrender  of  the  previous  estate.  Although  it  may 
be  true  that  accepting  a  lease  which  is  valid  for  some  pur- 
poses and  to  some  extent  (as,  for  instance,  a  verbal  lease  for 
a  term  exceeding  three  years),  admits  the  ability  of  the  lessor 
to  make  it ;  yet  the  other,  and,  as  has  been  suggested,  safer 
theory  of  surrenders  in  law,  will  save  the  lessee  from  the  loss 
of  his  old  estate,  when  it  is  obvious  upon  the  face  of  the  trans- 
action that  the  consideration  and  inducement  for  his  surren- 
dering it  cannot  be  realized  by  him.2  Whether  a  surrender 
by  operation  of  law  follows  from  accepting  a  lease  which  is 
only  voidable  and  not  void,  seems  uncertain.  It  has  been 
stated  in  the  Queen's  Bench  that  it  does ;  but  later,  in  the 
same  court,  in  a  case  where  a  bishop  made  a  second  lease  in 
consideration  of  the  actual  surrender  of  a  former  one,  and  his 
successor  avoided  the  second  lease,  the  opinion  appears  to 
admit  that  if  the  surrender  had  not  been  an  actual  surrender 
in  fact  but  by  implication  merely  from  the  acceptance  of  the 
second  lease,  the  avoiding  the  latter  would  have  had  the  effect 
of  reviving  the  former.3  Probably  a  due  regard  to  the  cer- 
tainty of  land  titles  would  lead  us  to  abide  by  the  older 
doctrine.  But  when  the  second  lease  is  taken  with  a  condi- 
tion that  it  shall  be  void  upon  a  certain  contingency,  which 
occurring,  the  term  is  lost,  the  first  estate  is  clearly  not 
revived,  for  the  second  lease,  when  accepted,  was  good,  and 
extinguished  the  former  once  for  all.4 

i  Roe  v.  Abp.  of  York,  6  East,  86;  Doe  v.  Courtenay,  11  Q.  B.  702. 
8  Wilson  v.  Sewell,  4  Burr.  1975;  Davison  v.  Stanley,  4  Burr.  2210. 
1  Roe  v.  Abp.  of  York,  6  East,  86;  Doe  v.  Bridges,  1  Barn.  &  Ad.  847. 
4  Fulmerston  v.  Steward,  Plowd.  107  b,  Doe  v.  Poole,  11  Q.  B.  716. 


62  STATUTE   OF  FRAUDS.  [CH.   IV. 

§  50.  It  is  not  essential  that  the  second  lease  should  be  for 
a  term  equal  to  the  unexpired  term  of  the  first,  nor  even 
that  it  should  be  of  the  same  dignity  with  the  first  lease.  An 
opinion  has  been  expressed  in  England,  that  a  tenancy  at  will 
would  not  be  allowed  to  operate  as  a  surrender  of  a  written 
lease  for  years,  because  no  such  intention  could  be  presumed 
in  the  lessee ; 1  but  it  is  inconsistent  with  several  decisions 
in  that  country,  and  does  not  appear  to  have  been  adopted  in 
this.  Thus  it  is  held  that  where  a  tenant  has  bargained  for 
a  new  lease  to  himself  and  another  jointly,  and,  pending  the 
execution  of  the  lease,  they  enter  together  and  occupy  the 
land,  a  tenancy  either  from  year  to  year  or  at  will,  according 
to  circumstances,  is  thereby  created,  which  works  a  surrender 
of  the  original  term.2  If,  indeed,  the  old  tenant  alone  con- 
tract for  a  new  lease,  and,  pending  the  execution  of  the  lease, 
remain  in  possession,  it  may  depend  upon  the  intention  of 
the  parties,  to  be  collected  from  the  instrument,  whether 
a  mere  tenancy  at  will  is  created  and  for  what  time ;  but  if 
it  is  created,  the  old  tenancy  is  thereby  determined.3  It 
is  settled  in  New  York,  in  harmony  with  this  doctrine,  that 
the  acceptance  of  a  verbal  lease,  if  a  valid  one,  is  a  sur- 
render of  a  previous  written  lease,  by  act  and  operation  of 
law.4 

1  Donellan  v.  Reed,  3  Barn.  &  Ad.  899. 

2  Hamerton  v.  Stead,  3  Barn.  &  C.  478;  Mellows  v.  May,  Cro.  Eliz. 
874.     See  the  remarks  of  the  court  upon  Donellan  v.  Reed,  in  Lyon  v. 
Reed,  13  Mees.  &  W.  285  ;  Doe  v.  Stanion,  1  Mees.  &  W.  701.     In  Foquet 
v.  Moor,  7  Exch.  870,  Pollock,  C.  B.,  says :    "  The  argument  .  .  .  goes  to 
this  extent,  that  if  there  be  a  tenancy  under  a  lease,  and  the  parties  make 
a  verbal  agreement  for  a  sufficient  consideration,  that  instead  of  the 
existing  term,  there  shall  be  a  tenancy  from  year  to  year,  at  a  different 
rent,  that  would  be  a  surrender  of  the  lease  by  operation  of  law.     I  am 
of  opinion  that  it  would  not.     It  would  be  most  dangerous  to  allow  a  term 
created  by  an  express  demise  to  be  thus  got  rid  of  by  parol  evidence." 

8  Doe  v.  Stanion,  1  Mees.  &  W.  695. 

4  Schieffelin  v.  Carpenter,  15  Wend.  400;  Smith  v.  Niver,  2  Barb. 
180.  See  also  Dodd  v.  Acklom.  6  Mann.  &  G.  672.  Of  course  the 
remarks  in  this  section  are  confined  to  tenancies  at  will  purposely  created 
by  the  parties,  and  do  not  apply  to  such  as  may  result,  for  instance,  from 


CH.    IV.]  ASSIGNMENT   AND   SURRENDER.  63 

§  51.  The  theory  that  such  surrenders  depend  upon  the 
presumed  intention  of  the  parties  has  been  carried,  perhaps, 
to  an  extreme  in  New  York.  It  appeared  that  the  lessee  had 
a  good  title,  by  the  first  lease,  to  all  that  the  second  lease 
purported  to  convey,  besides  the  personal  covenant  of  the 
lessor  for  the  payment  of  improvements ;  that  the  first  lease 
was  for  three  lives,  and  the  second  only  for  one  of  them ;  and 
that  no  surrender  was  in  fact  made  of  the  first  lease  or  of  the 
bond  accompanying  it,  but  both  were  retained  by  the  lessee ; 
and,  on  these  facts,  the  Supreme  Court  said  that  "every 
circumstance,  except  the  fact  of  receiving  the  second  lease, 
altogether  rebutted  the  idea  of  an  intention  to  surrender," 
and  held  that  none  had  taken  place.1 

§  52.  Lastly,  it  is  to  be  observed  that  the  estate,  whatever 
it  is,  the  acceptance  of  which  is  to  work  a  surrender  of  a  pre- 
vious tenancy,  must  take  effect  before  the  previous  tenancy 
expires.2  Where  an  agreement  in  writing  was  made  between 
landlord  and  tenant,  signed  by  the  landlord,  for  a  new  lease 
to  be  granted  at  any  time  after  the  completion  of  repairs  to 
be  made  by  the  tenant  with  all  convenient  speed,  but  blanks 
were  left  for  the  day  of  the  commencement,  and,  the  repairs 
being  completed,  the  landlord  tendered  a  lease  to  commence 
from  that  time,  but  the  tenant  insisted  that  the  new  lease 
was  not  to  commence  till  the  expiration  of  the  old,  the  Master 
of  the  Rolls  said  he  could  not  admit  parol  evidence  to  prove 
that  the  defendant  was  to  surrender  any  part  of  his  first  lease, 
and  ordered  performance  by  accepting  a  lease  to  run  from  the 
expiration  of  the  first  one.8 

§  53.  A  surrender  by  act  and  operation  of  law  will  also 

an  unsuccessful  attempt  to  create  a  term  by  parol  for  more  than  the 
statutory  period.  The  lease  which  is  to  work  the  surrender  must,  as  we 
have  seen,  be  valid  to  pass  the  interest  which  it  purports  to  convey.  See 
also  Switzer  v.  Gardner,  41  Mich.  164. 

1  Van  Rensselaer  v.  Penniman,  6  Wend.  569.     See  Abell  v.  Williams, 
3  Daly,  17;  Flagg  v.  Dow,  99  Mass.  18. 

2  Roberts  on  Frauds,  260;  Doe  v.  Walker,  5  Barn.  &  C.  111. 

8  Pym  v.  Blackburn,  3  Ves.  Jr.  34;  Sir  Richard  Pepper  Arden,  M.  R. 


64  STATUTE   OF   FKAUDS.  [CH.   IV. 

follow  from  an  actual  change  of  tenancy.  When  the  old 
tenant  quits  and  a  new  tenant  enters  upon  the  premises,  and 
is  accepted  as  such  by  the  landlord,  the  interest  of  the  old 
tenant  is  fairly  surrendered  by  act  and  operation  of  law.1 
These  are  acts  so  solemn  that  the  parties  are  estopped  to 
deny  them,  and  they  are  sufficiently  notorious  to  leave  but 
small  room  for  fraud  or  perjury  in  the  testimony  of  witnesses 
to  prove  them.  This  doctrine,  resting  on  a  long  series  of 
decisions,  was  strongly  condemned  in  the  case  of  Lyon  v. 
Reed,  in  the  Court  of  Exchequer;  but  it  was  not  found 
necessary  to  pass  directly  upon  it,  and  the  court  simply 
refused  to  extend  it  to  reversions  or  incorporeal  heredita- 
ments, which  pass  only  by  deed ; 2  and  whatever  doubt  their 
opinion  may  have  cast  upon  its  validity  was  removed  by  the 
later  case  of  Nickells  v.  Atherstone,  where  the  Court  of 
Queen's  Bench,  while  showing  that  Lyon  v.  Reed  had  not 
overruled  the  previous  cases,  reasserted  the  doctrine  which 
they  had  established.  The  facts  were  that  the  landlord,  by 
express  permission  of  the  tenant,  let  to  another  tenant  and 
gave  him  possession,  and  afterwards  brought  an  action  for 
rent  against  the  first  tenant  upon  his  original  agreement. 
The  court  sustained  the  verdict  below  for  defendant  on  the 
issue  of  surrender,  and  in  delivering  judgment  Lord  Denman, 
C.  J.,  said,  taking  the  definition  of  a  surrender  in  law  which 
was  laid  down  in  Lyon  v.  Reed:  "If  the  expression  'surren- 
der by  operation  of  law  '  be  properly  '  applied  to  cases  where 
the  owner  of  a  particular  estate  has  been  party  to  some  act, 
the  validity  of  which  he  is  by  law  afterwards  estopped  from 
disputing,  and  which  would  not  be  valid  if  his  particular 
estate  had  continued,'  it  appears  to  us  to  be  properly  applied 

1  Stone  v.  Whiting,  2  Stark.  235;  Phipps  v.  Sculthorpe,  1  Barn.  &  Aid. 
50;    Thomas  i>.  Cook,  2  Barn.  &  Aid.  119;  Sparrow  v.  Hawkes,  2  Esp. 
504;    Randall  v.  Rich,  11  Mass.  494;  Hesseltine  v.  Seavey,  16  Me.  212; 
Smith  v.  Niver,  2  Barb.  (N.  Y.)  180;  Fobes  v.  Lewis,  (N.  Y.)  Sup.  Ct. 
1876,  3  N.  Y.  Weekly  Digest,  65;  Koenig  v.  Miller  Brewery  Co.,  38  Mo. 
App.  182. 

2  Lyon  v.  Reed,  13  Mees.  &  W.  285. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  65 

to  the  present.  As  far  as  the  plaintiff,  the  landlord,  is  con- 
cerned, he  has  created  an  estate  in  the  new  tenant  which  he  is 
estopped  from  disputing  with  him,  and  which  is  inconsistent 
with  the  continuance  of  the  defendant's  term.  As  far  as  the 
new  tenant  is  concerned,  the  same  is  true.  As  far  as  the 
defendant,  the  owner  of  the  particular  estate  in  question,  is 
concerned,  he  has  been  an  active  party  in  this  transaction, 
not  merely  by  consenting  to  the  creation  of  the  new  relation 
between  the  landlord  and  the  new  tenant,  but  by  giving  up 
possession  and  so  enabling  the  new  tenant  to  enter. "  1 

§  54.  In  like  manner,  a  surrender  by  operation  of  law  takes 
place  where  two  tenants  of  different  premises  verbally  agree 
to  exchange,  which  agreement  is  assented  to  by  the  stewards 
of  both  landlords  and  executed  by  taking  possession.2  Where 
the  new  tenant  was  accepted  for,  and  took  possession  of, 
only  part  of  the  premises  previously  leased,  but  advertised 
the  whole  to  be  let  or  sold,  and  had  taken  rent  from  the  old 
tenant  up  to  the  middle  of  the  quarter,  it  was  held  to  be  a 
surrender  in  law  of  the  whole  premises.3  But  where  the  lease 
under  which  the  new  tenant  has  entered  and  occupied  turns 
out  to  be  invalid,  the  mere  entry  and  occupation  will  not 
have  the  effect  to  surrender  the  first  tenancy,  contrary  to  the 
intentions  of  all  parties.4 

§  55.  That  there  should  be  an  actual  change  of  possession 
is  indispensable  to  such  a  surrender  in  law  as  we  are  now 
considering.5  Thus,  a  verbal  license  to  a  tenant  from  year 
to  year,  for  instance,  to  quit  in  the  middle  of  a  quarter,  and 

1  Nickells  v.  Atherstone,  10  Q.  B.  944. 

2  Bees  y.  Williams,  2  Crorap.  M.  &  R.  581. 
•  Reeve  v.  Bird,  1  Cromp.  M.  &  R.  31. 

4  Schieffelin  v.  Carpenter,  15  Wend.  (N.  Y.)  400.  Where  the  assignee 
of  a  term,  under  a  verbal  agreement  to  take  the  term  and  pay  for  certain 
repairs,  enters,  and  occupies,  it  seems  he  may  defend  payment  for  the 
repairs,  that  remaining  executory.  Buttemere  v.  Hayes,  5  Mees.  &  W. 
456. 

6  Taylor  v.  Chapman,  Peake,  Add.  Cas.  19;  Thomson  v.  Wilson,  2 
Stark.  379;  Lammott  ».  Gist,  2  Harr.  &  G.  (Md.)  433. 


66  STATUTE   OF  FEAUDS.  [CH.   IV. 

the  tenant  quitting  accordingly,  was  held  to  be  insufficient 
in  Mollett  v.  Brayne,1  a  case  which  has  often  been  quoted 
against  those  which  hold  surrenders  by  operation  of  law  to 
arise  from  a  change  of  tenancy,  but  which  is  perfectly  recon- 
cilable with  them,  on  the  ground  that  in  this  case  no  pos- 
session was  taken  as  in  the  other  cases,  and  that  therefore 
the  surrender  did  rest  entirely  in  agreement,  and  was  against 
the  spirit  of  the  statute.2  Where,  however,  the  tenant  assigns 
his  term  by  writing,  and  the  landlord  assents,  though  verbally, 
no  actual  entry  upon  the  land  by  the  assignee  appears  to  be 
necessary.8  It  is  not,  it  seems,  necessary  that  the  possession 
should  be  taken  by  a  new  tenant;  the  resumption  of  it  by 
the  landlord  himself  is  held  to  be  sufficient.4  And  the  Court 
of  Common  Pleas  has  held,  that  by  the  delivery  back  of  the 
key  by  the  tenant  animo  sursum  reddendi  and  the  acceptance 
of  it  by  the  landlord,  there  was  such  a  change  of  possession 
as  worked  a  surrender  of  the  term.5  In  the  case  of  Phen6  v. 
Popplewell,  it  was  held  by  the  same  court  to  be  a  surrender, 
where  the  tenant  went  away,  leaving  the  key  at  the  landlord's 
counting-house,  and  the  latter,  though  he  at  first  refused  to 
accept  it,  afterwards  put  up  a  notice  that  the  premises  were 
to  let,  used  the  key  to  show  them  to  applicants,  and  painted 
out  the  tenant's  name  from  the  front  of  the  building.  Keat- 
ing, J.,  in  his  opinion,  says:  "Any  agreement  between  land- 
lord and  tenant  which  results  in  a  change  of  the  possession  — 

1  Mollett  v.  Brayne,  2  Camp.  103. 

2  Stone  0.  Whiting,  2  Stark.  235;  Johnstone  v.  Hudlestone,  4  Barn.  & 
C.  922. 

8  Walker  v.  Richardson,  2  Mees.  &  W.  882.  So  in  Michigan:  Logan 
v.  Anderson,  2  Doug.  101.  But  if  there  be  a  covenant  by  the  lessee  not 
to  assign,  a  parol  waiver  by  the  lessor  and  lessee's  assigning  his  term  does 
not  discharge  him  from  the  other  covenants  in  the  lease,  but  he  is  still 
liable  for  breach  of  them  committed  by  the  assignee.  Jackson  v.  Brown- 
son,  7  Johns.  (N.  Y.)  227. 

4  Grimman  v.  Legge,  8  Barn.  &  C.  324;  Lamar  v.  McNamee,  10  Gill  & 
J.  (Md.)  116.  But  this  is  doubted  in  Morrison  v.  Chadwick,  7  C.  B.  266. 

6  Dodd  v.  Acklom,  6  Mann.  &  G.  672.  This  case  has  since  been  dis- 
cussed, but  not  overruled,  in  Furnivall  v.  Grore,  8  C.  B.  N.  s.  496. 


CH.   IV.]  ASSIGNMENT   AND   SURRENDER.  67 

whether  the  former  acts  upon  the  agreement  by  reletting, 
or  by  taking  possession  himself,  or  by  some  unequivocal  acts 
showing  his  assent  thereto  —  will  amount  to  a  surrender  by 
act  and  operation  of  law."1  Though  in  all  such  cases  the 
previous  tenant  is  a  necessary  party  to  the  surrender,  yet  it 
has  been  held  in  Pennsylvania,  and,  as  it  seems,  very  reason- 
ably, that  when  a  tenant  abandons  the  premises  and  absconds, 
it  amounts  to  a  surrender  as  against  him,  though  he  in  words 
deny  that  he  has  surrendered;  and  the  landlord  may  enter.2 
§  56.  It  is  not  enough  that  there  be  an  actual  entry  by  the 
new  tenant,  but  it  must  be  with  the  landlord's  assent  and 
acceptance  of  him  as  his  tenant.  Thus,  where  a  tenant  sold 
out  the  remainder  of  his  term  to  one  who  had  agreed  to  pur- 
chase the  reversion  from  the  landlord,  and  the  purchaser, 
without  the  landlord's  assent,  put  in  a  new  tenant  who  occu- 
pied two  years,  and  afterwards  the  agreement  for  the  pur- 
chase of  the  reversion  was  rescinded,  it  was  held  that  the 
original  tenant  was  liable  to  the  original  landlord  for  the 
whole  rent  from  the  time  he  quitted  the  premises  to  the  end 
of  the  term,  the  landlord  not  having  assented  to  the  change 
of  tenancy,  and  there  having  been  no  surrender  in  writing. 
The  court  said  it  did  not  appear  that  the  second  tenant  was 
ever  liable  to  the  plaintiff  for  rent;  and  Parke,  B.,  distin- 
guished the  case  from  Phipps  v.  Sculthorpe,3  because  there 
the  landlord  assented,  though  verbally,  to  hold  the  new  comer 
as  tenant.4  Of  course  the  original  tenant,  as  well  as  his 
landlord,  must  be  a  consenting  party  to  the  substitution  of 
the  new  tenant;  and  whether  in  either  case  the  necessary 
assent  has  been  given,  is  for  the  jury  to  determine  upon  all 
the  circumstances  of  the  case.  Where  a  lessor,  pending  the 

1  Phone*  v.  Popplewell,  12  C.  B.  N.  s.  334.    For  facts  that  were  held 
evidence  of  such  a  surrender,  and  therefore  wrongfully  kept  from  the 
jury,  see  Pratt  v.  Richards  Jewelry  Co.,  69  Pa.  St.  53;  Auer  v.  Penn,  92 
Pa.  St.  444.     And  see  Amory  v.  Kannoffsky,  117  Mass.  351. 

2  McKinney  v.  Reader,  7  Watts,  123. 

8  Phipps  v.  Sculthorpe,  1  Barn.  &  Aid.  50. 
4  Matthews  v.  Sawell,  8  Taunt.  270. 


68  STATUTE   OF  FRAUDS.  [CH.   IV. 

terra,  made  another  lease  to  a  third  party,  and,  it  becoming  a 
question  whether  the  original  lessee  had  so  assented  to  the 
transaction  as  to  determine  his  interest  by  operation  of  law, 
his  lease  was  produced  from  the  lessor's  custody  with  the 
seals  torn  off,  and  it  was  proved  to  be  the  custom  to  send  in 
old  leases  to  the  lessor's  office  before  a  renewal  was  made,  it 
was  held  that  there  was  evidence,  particularly  that  of  the 
custom,  from  which  the  jury  might  infer  that  the  original 
lessee  had  assented  to  the  making  of  the  second  lease,  so  that 
his  tenancy  had  been  regularly  determined.1  So,  where  the 
rent  was  regularly  paid  by  a  third  person,  who  occupied  for 
two  years  after  the  original  tenant  disappeared,  the  court 
refused  to  set  aside  a  verdict  finding  that  the  landlord  had 
accepted  the  former  as  his  tenant.2  Perhaps,  however,  the 
mere  fact  of  receiving  a  payment  of  rent  from  a  new  occupant 
should  not  be  held  to  discharge  the  original  tenant ; 3  but 
where  rent  is  received  from  the  new  tenant  as  an  original 
and  not  a  sub-tenant,  the  landlord,  it  is  held,  is  estopped  to 
deny  a  legal  surrender  of  the  first  lease.4 

§  57.  The  acts  of  landlord  or  tenant  which  will  estop  him 
to  deny  a  surrender  being,  as  we  have  seen,  such  acts  as  are 
plainly  irreconcilable  with  an  intention  to  continue  the  rela- 
tion of  landlord  and  tenant,  it  will  be  clear  that  a  landlord 
may  do  such  acts  as  are  necessary  and  reasonable  for  the 
preservation  of  his  property  during  the  vacation  of  it  by  a 
tenant,  without  producing  such  a  consequence.  Thus  adver- 
tising premises  to  let  or  sell,  the  tenant  having  quitted,  does 
not  estop  the  landlord  to  hold  him  for  the  rent  until  a  new 
tenant  be  put  in.5  But,  on  the  other  hand,  a  mere  protesta- 

1  Walker  v.  Richardson,  2  Mees.  &  W.  882. 

2  Woodcock  ».  Nuth,  8  Bing.  170. 
8  Copeland  v.  Watts,  1  Stark.  95. 

*  Smith  v.  Niver,  2  Barb.  (N.  Y.)  180;  Bailey  v.  Delaplaine,  1  Sandf. 
(N.  Y.)  5.  See  Wilson  v.  Lester,  64  Barb.  (N.  Y.)  431 ;  Vandekar  v. 
Reeves,  40  Hun  (N.  Y.)  430. 

6  Redpath  v.  Roberts,  3  Esp.  225.  It  will  be  observed  that  in  Reeve 
t'.  Bird,  1  Cromp.  M.  &  R.  31,  there  \vas  an  actual  admission  of  a  new 
tenant  to  part  of  the  premises,  besides  the  advertising  to  let  or  sell. 


CH.   IV.]  ASSIGNMENT  AND   SURRENDER.  69 

tion  against  a  surrender  will  not  prevail  against  such  acts  as 
must  be  held  to  work  one,  or  the  party  not  in  fault  be  left 
helpless  indefinitely ;  where  a  tenant  quitted  the  premises  and 
absconded  with  his  family  and  effects,  and  upon  the  landlord 
resuming  possession,  the  former  tenant  undertook  to  sustain 
an  action  against  him  from  his  retreat,  it  was  held  that  he 
had  surrendered  his  term  by  abandonment. 1 

i  McKinney  v.  Reader,  7  Watts  (Pa.)  123. 


70  STATUTE   OF  FBAUDS.  [CH.  V. 


CHAPTER  Y. 

CONVEYANCES   BY   OPERATION   OF  LAW,    ETC. 

§  58.  IN  the  present  chapter,  which  closes  our  considera- 
tion of  the  three  first  sections  of  the  statute,  it  is  proposed 
to  inquire  how  far,  if  at  all,  an  estate  in  land  may  be  still 
created  or  transferred  by  manual  or  symbolical  acts  of  the 
parties,  without  writing,  and  what  are  conveyances  by  act 
and  operation  of  law ;  using  the  term  conveyances  in  a  some- 
what restricted  sense,  not  embracing  the  making,  surrender, 
or  assignment  of  leases,  as  that  branch  of  conveyances  has 
been  already  treated  under  the  sections  and  clauses  of  the 
statute  having  particular  reference  to  them. 

§  59.  The  general  principle  that  cancelling,  altering,  or 
redelivering  the  title-deeds  of  corporeal  interests  in  lands 
does  not  operate  to  revest  the  land  in  the  grantor  is  too 
familiar  to  require  the  citation  of  authorities.  Lord  Chief 
Justice  Eyre  declared  in  the  case  of  Bolton  v.  The  Bishop  of 
Carlisle,1  that  he  would  hold  the  law  to  be  the  same  with 
respect  to  incorporeal  hereditaments,  which  lie  in  grant  and 
were  conveyed  without  livery ;  but  undoubtedly  the  weight  of 
opinion  is  against  this  suggestion.2  For  things  which  are  said 
to  lie  in  grant  are  conveyed  by  means  of  the  grant ;  the  deed 
itself  is  the  essential  instrumentality  of  transfer ;  but  in  regard 
to  corporeal  estates,  livery  of  seisin  is  that  instrumentality, 
and  the  deed  is  only  the  written  evidence  of  it.  The  prin- 
ciple, as  above  expressed,  may  be  illustrated  by  the  cases  in 
which  a  deed  of  land  is  altered  in  some  material  respect  by  the 

1  Bolton  v.  Bp.  of  Carlisle,  2  H.  Bl.  259. 

a  Gilbert  Evid.  Ill,  112;  Buller  N.  P.  267;  Roberts  on  Frauds,  251. 


CH.    V.]  CONVEYANCES   BY   OPERATION   OF   LAW,   ETC.  71 

grantee.  In  these,  it  is  held,  that  as  to  him  or  those  taking 
from  him,  with  notice  of  the  alteration,  the  deed  is  avoided, 
and  neither  he  nor  they  can  avail  themselves  of  it  in  evidence, 
nor  supply  the  want  of  it  by  parol  testimony. 1  But,  though  such 
alteration  be  with  a  fraudulent  intent,  yet  if  there  be  a  coun- 
terpart of  the  original  deed  in  the  hands  of  the  grantor,  the 
grantee  may  sustain  himself  upon  it  and  use  it  to  prove  his 
title;2  the  alteration  having  no  effect  to  devest  the  title,3  but 
only  to  prevent  the  party  making  it,  and  those  who  claim  under 
him  with  notice,  from  using  it  for  the  purposes  of  a  deed,  by 
proving  property  by  it  or  obtaining  redress  upon  its  covenants. 
§  60.  There  is,  however,  a  class  of  cases  in  which,  while 
the  general  principle,  as  above  stated,  is  carefully  recognized, 
the  courts  in  some  of  the  States  have  allowed  a  certain  effect 
to  the  cancellation  of  title-deeds  or  their  redelivery  to  the 
grantor,  which  appears  at  first  sight  to  be  in  contravention  of 
the  statute.  Thus,  where  a  deed  has  been  given  and  not  yet 
recorded,  and  the  grantee,  wishing  to  sell  the  estate,  delivers 
up  and  cancels  his  deed,  and  the  grantor  executes  a  new  deed 
to  the  purchaser,  the  title  of  the  latter  is  good.  Such,  at 
least,  is  the  doctrine  held  in  most  of  the  New  England  States, 
and  in  New  Jersey  and  Alabama;  though  it  seems  not  to  be 
accepted  in  Connecticut,  New  York,  or  Kentucky.4  In  the 
first-named  States,  the  general  principle  is  laid  down  that  the 
voluntary  surrender  or  cancellation  of  an  unrecorded  deed, 
with  intent  to  revest  the  estate  in  the  grantor,  operates  as  a 

1  Chesley  v.  Frost,  1  N.  H.  145;  Barrett  v.  Thorndike,  1  Greenl.  (Me.) 
73 ;  Jackson  v.  Gould,  7  Wend.  (N.  Y.)  364. 

3  Lewis  tj.  Payn,  8  Cowen  (N.  Y.)  71. 
»  Rifener  v.  Bowman,  53  Pa.  St.  313. 

4  Holbrook  v.  Tirrell,  9  Pick.  (Mass.)  105;  Nason  v.  Grant,  21  Me. 
160;  Patterson  v.  Yeaton,  47  Me.  314;  Mussey  v.  Holt,  24  N.  H.  248; 
Farrar  v.  Farrar,  4  N.  H.  191;  Tomson  v.  Ward,  1  N.  H.  9;  Dodge  v. 
Dodge,  33  N.  H.  487;  Faulks  v.  Burns,  1  Green  (N.  J.)  Ch.  2  50;  Mallory 
v.  Stodder,  6  Ala.  801.     See  Cravener  v.  Bowser,  4  Pa  St.  259;  Gilbert  r. 
Bulkley,  5  Conn.  262  ;  Coe  v.  Turner,  5  Conn.  86 ;  Holmes  v.  Trout,  7 
Peters  (U.  S.)  171;   Raynor  v.  Wilson,  6  Hill  (N.  Y.)  469;   Parker  v. 
Kane,  22  How.  (U.  S.)  1. 


72  STATUTE   OF  FRAUDS.  [CH.   V. 

reconveyance  to  him ; 1  but  such  a  transaction  is  good  only 
when  fairly  conducted,  and  when  the  rights  of  third  parties 
have  not  intervened.2  It  has  been  held  in  Massachusetts  that 
it  was  good  under  these  conditions,  though  the  first  grantee 
had  been  in  possession  for  thirteen  years;  but  this  was  an 
early  case  and  does  not  seem  reconcilable  with  the  great  num- 
ber of  cases,  some  of  which  are  Massachusetts  cases,  holding 
that  when  real  estate  has  once  vested  by  transmutation  of 
possession  it  cannot  be  devested  by  cancelling  or  surrendering 
the  deed.3 

§  61.  The  principle  on  which  the  doctrine  of  the  cases  re- 
ferred to  in  the  preceding  section  is  supported,  is  explained, 
and  shown  to  be  not  irreconcilable  with  the  statute,  by  Chief 
Jutice  Shaw,  who  said,  in  delivering  the  judgment  of  the 
Supreme  Court  of  Massachusetts,  "Such  cancellation  does 
not  operate  by  way  of  transfer,  nor,  strictly  speaking,  by  way 
of  release  working  upon  the  estate,  but  rather  as  an  estoppel 
arising  from  the  voluntary  surrender  of  the  legal  evidence, 
by  which  alone  the  claim  [of  the  first  grantee]  could  be  sup- 
ported."4 The  same  ground  is  taken,  and  perhaps  more 
precisely  stated,  by  the  Supreme  Court  of  New  Hampshire : 
"  The  grantee  having  put  it  out  of  his  power  to  produce  the 
deed,  the  law  will  not  allow  him  to  introduce  secondary  evi- 
dence in  violation  of  his  undertaking,  and  to  defeat  the  fair 
intention  of  the  parties. " 5  But  in  the  same  court,  in  a  case 
where  an  unrecorded  deed  was  delivered  back,  not  with  the 

1  Farrar  v.  Farrar,  Tomson  r.  Ward,  and  Mallory  v.  Stodder,  just  cited. 
See  also  Trull  ».  Skinner,  17  Pick.  (Mass.)  213;  where  cancelling  a  deed 
of  defeasance  by  agreement  was  held  to  make  the  estate  absolute  in  the 
mortgagee.     Also  Sherburne  v.  Fuller,  5  Mass  133. 

2  Trull  v.   Skinner,  17  Pick.  (Mass.)  213;   and  Marshall  v.  Fisk,  6 
Mass.  24;  Hall  v.  McDuff,  24  Me.  811. 

8  Commonwealth  v.  Dudley,  10  Mass.  403.  See  a  note  to  this  case,  in 
which  the  decision  is  criticised,  and  many  authorities  collected.  See 
also  Steel  v.  Steel,  4  Allen,  417;  Lawrence  v.  Stratton,  6  Cush.  163; 
Howe  v.  Wilder,  11  Gray,  267. 

4  Trull  v.  Skinner,  17  Pick.  215. 

6  Mussey  v.  Holt,  24  N.  H.  252.     Also  Farrar  v.  Farrar,  4  N.  H.  191. 


OH.   V.]  CONVEYANCES   BY   OPERATION   OF  LAW,   ETC.  73 

intent  that  the  land  should  become  the  grantor's,  but  that 
another  deed  to  a  third  party  should  be  substituted,  it  was 
held  that  the  grantee  might  prove  contents  of  his  deed,  the 
transaction  being  in  good  faith,  and  the  right  of  third  parties 
not  having  intervened.1  Again,  the  cancellation  of  a  deed 
unrecorded  and  before  possession  taken,  may  be  said  to  destroy 
the  grantee's  inchoate  title  leaving  the  grantor  in  possession 
of  his  former  title ; 2  or  if  it  does  not  have  that  effect,  it  at 
least  places  it  in  the  power  of  the  grantor  to  sell  or  encumber 
the  land,  and  a  bond  fide  purchaser  or  encumbrancer  without 
notice  would  have  the  paramount  interest.3  In  any  view, 
however,  we  may  safely  say  that  to  allow  validity  to  such 
transactions,  according  to  the  fair  intentions  of  the  parties, 
is  not  necessarily  an  infraction  of  the  Statute  of  Frauds. 

§  62.  There  is  one  mode  of  conveying  an  interest  in  lands 
without  writing,  which  is  firmly  established  in  the  English 
law  by  a  series  of  decisions  beginning  with  Russel  v.  Russel,4 
in  1783,  and  that  is  by  equitable  mortgage  arising  on  the 
deposit  of  title-deeds.  The  rule  in  such  cases  is  stated  to 
be,  that  when  a  debtor  deposits  his  title-deeds  with  a  creditor, 
as  security  for  an  antecedent  debt  or  upon  a  fresh  loan  of 
money,  it  is  a  valid  agreement  for  a  mortgage  between  the 
parties,  and  is  not  within  the  operation  of  the  Statute  of 
Frauds.5  The  primary  intention  must  be  to  execute  an  im- 
mediate pledge,  and  thereupon  an  engagement  is  implied  to 
do  whatever  may  be  necessary  to  render  the  pledge  available. 
Accordingly,  a  deposit  of  the  title-deeds  for  the  simple  pur- 
pose of  having  a  mortgage  drawn,  and  in  the  absence  of  any 
indebtedness  on  the  part  of  the  depositor,  would  not  raise  an 
equitable  mortgage ;  but  if  there  were  a  debt  then  or  previously 
incurred,  the  deposit  would  create  an  equitable  mortgage, 

1  Bank  v.  Eastman,  44  N.  H.  438. 

2  Tomson  t>.  Ward,  1  N.  H.  9. 

8  Mallory  v.  Stodder,  6  Ala.  801. 

4  Russel  p.  Russel,  1  Bro.  Ch.  269.  See  cases  referred  to  in  other 
notes  to  this  section. 

6  2  Story  Eq.  Jur.  §  1020. 


74  STATUTE   OF   FKAUDS.  [CH.   V. 

though  there  should  not  be  a  word  spoken  between  the  parties 
at  the  time.1  The  lien  thus  created  will  be  extended  to  cover 
future  advances,  if  an  intention  to  do  so  is  made  out  by  evi- 
dence;2 and,  though  the  deposit  be  made  for  a  particular 
purpose,  it  seems  that  that  purpose  may  be  enlarged  by  sub- 
sequent agreement,  without  involving  the  necessity  of  actual 
redelivery.3  Where,  however,  the  parties  accompany  the 
deposit  by  a  written  memorandum  to  explain  its  purpose, 
parol  evidence  will  not  be  admitted  to  show  any  other  inten- 
tion. Indeed,  in  the  absence  of  any  written  memorandum,  a 
mere  deposit  will  never  create  an  equitable  mortgage  as  against 
strangers,  except  when  it  can  be  accounted  for  in  no  other 
way,  or  the  holder  is  a  stranger  to  the  title  and  the  lands ; 4 
and  the  delivery  of  such  a  memorandum  to  the  creditor  will 
not  supply  the  place  of  the  actual  deposit  of  the  title-deeds 
with  him.5  But  when  the  party  creating  the  charge  has  only 
a  partial  interest  in  the  property  charged,  or  for  some  other 
reason  is  not  in  a  situation  to  deposit  the  deeds,  a  memoran- 
dum, showing  an  intention  to  create  an  equitable  mortgage, 
may  be  sufficient.6  The  deposit  of  the  deeds  may  be  with 
some  person  on  behalf  of  the  creditor,  and  over  whom  the 
depositor  has  no  control,  provided  the  purpose  of  the  deposit 
be  proved ;  a  deposit  with  the  mortgagor's  own  wife  has  been 
held  insufficient;  but  a  deposit  with  his  solicitor  may  be 


1  Nbrris  v.  Wilkinson,  12  Ves.  192 ;  Keys  v.  Williams,  3  Young  &  C. 
55 ;  Hockley  v.  Bantock,  1  Russ.  141 ;  Brizick  v.  Manners,  9  Mod.  284 ; 
Hooper,  ex  parte,  19  Ves.  177 ;  Pain  v.  Smith,  2  Myl.  &  K.  417. 

2  Whitworth  v.  Gaugain,  3  Hare,  416;    Langston,  ex  parte,  17  Ves. 
228.     But  see  Hooper,  ex  parte,  19  Ves.  477. 

8  Kensington,  ex  parte,  2  Ves.  &  B.  79;  Nettleship,  ex  parte,  2  M.  D. 
&  De  G.  124. 

4  Coote  on  Mortgages,  217;  Bozon  v.  Williams,  3  Young  &  J.  150; 
Allen  v.  Knight,  5  Hare,  272 ;  Hooper,  ex  parte,  19  Ves.  477. 

6  Coming,  ex  parte,  9  Ves.  115. 

6  Sheffield  Union  Co.,  ex  parte,  13  L.  T.  N.  8.  477;  Smith,  ex  parte, 
2  M.  D.  &  De  G.  587;  Daw  v.  Terrell,  33  Beav.  218;  Miller,  Equitable 
Mortgages,  24. 


CH.   V.]  CONVEYANCES   BY   OPERATION   OF  LAW,   ETC.  75 

good.1  A  mere  verbal  statement  by  the  owner  of  the  property 
to  the  alleged  mortgagee,  that  he  holds  the  deeds  for  the 
mortgagee,  will  not  suffice  to  create  an  equitable  mortgage.2 
§  62  a.  It  was  for  some  time  doubtful  whether  a  deposit 
of  part  only  of  the  title-deeds  of  an  estate  would  be  a  sufficient 
deposit  to  create  an  equitable  mortgage.  In  the  case  of 
Wetherell,  ex  parte,  it  was  held  that  a  deposit  of  part  of 
the  deeds,  together  with  a  written  statement  that  the  whole 
was  deposited,  was  sufficient  evidence  to  raise  the  presumption 
of  an  equitable  mortgage.3  In  Pearse,  ex  parte,  on  the  other 
hand,  a  part  deposit  alone  was  held  insufficient.4  The  next 
case,  Arkwright,  ex  parte,  followed  the  doctrine  of  Wetherell, 
ex  parte,  although  the  only  title-deed  deposited  was  a  paid- 
off  mortgage.5  In  Chippendale,  ex  parte,  there  was  a  deposit 
of  part  of  the  deeds,  but  no  writing ;  yet  the  court  held  that, 
in  the  absence  of  evidence  to  the  contrary,  this  would  make 
an  equitable  mortgage ; 6  and  it  seems  now  well  settled  that 
an  equitable  mortgage  may  be  created,  though  a  part  only 
of  the  title-deeds  be  deposited.7  A  somewhat  similar  ques- 
tion arises  where  it  is  intended  to  obtain  advances  upon 
several  estates,  but  the  deeds  of  a  part  only  are  deposited. 
Thus,  in  Jones  v.  Williams,  deeds  of  some  of  the  estates 
were  deposited,  and  with  them  a  statement  that  they  were 
the  deeds  of  all.  It  was  held  by  Romilly,  M.  R.,  that, 
although  the  parties  making  the  advances  were  deceived,  and 
firmly  believed  that  they  had  the  deeds  of  all  the  estates, 
equitable  mortgages  were  created  only  upon  those  the  deeds 
of  which  were  actually  deposited.  "  To  treat  it  as  an  actual 
charge  on  the  property  not  included  in  any  of  the  deeds, 

1  Coming,  ex  parte,  9  Ves.  115;  Lloyd  ».  Attwood,  3  De  G.  &  J.  614. 
8  Ex  parte  Broderick,  18  Q.  B.  D.  766. 
8  Wetherell,  ex  parte,  11  Ves.  401. 
4  Pearse,  ex  parte,  Buck,  525. 

6  Arkwrignt.  ex  parte,  3  M.  D.  &  De  G.  129. 
*  Chippendale,  ex  parte,  1  Deac.  67. 

7  Lacon  v.  Allen,  3  Drew.  582.     And  see  Roberts  r.  Croft,  2  De  G.  & 
J.  1.     Dixon  v.  Mucklestone,  L.  R.  8  Ch.  155. 


76  STATUTE   OF   FRAUDS.  [CH.   V. 

would  be  giving  a  greater  extent  than  would  be  possible  to 
the  doctrine  of  equitable  deposits. " 1  So  it  has  been  held 
that  an  agreement  to  deposit  a  deed  of  title  not  now  in 
existence  does  not  make  an  equitable  mortgage.2 

§  62  b.  The  case  of  Burton  v.  Gray  3  is  an  import- 
ant one  in  connection  with  the  subject  of  equitable  mort- 
gages. The  plaintiff  put  certain  title-deeds  in  the  hands 
of  his  brother,  to  enable  him  to  borrow  money  upon  them 
from  a  friend.  The  brother,  however,  took  the  deeds  to 
the  defendant,  a  banker,  and  produced  a  letter,  purporting 
to  be  a  direction  to  the  banker  from  the  plaintiff,  to 
advance  to  his  brother  XI, 000  for  a  week,  upon  the  security 
of  the  deeds.  The  defendant  took  the  deeds,  and  lent  the 
depositor  money  upon  them  at  different  times,  but  not  as 
directed  in  the  letter.  The  plaintiff's  brother  being  after- 
wards convicted  of  forgery,  and  transported,  the  defendant 
threatened  to  foreclose  his  alleged  equitable  mortgage,  to 
reimburse  himself  for  the  sums  advanced.  Plaintiff  there- 
upon brought  this  bill  that  defendant  might  be  decreed  to 
give  back  the  title-deeds,  and  the  decree  was  granted.  In 
the  course  of  the  hearing,  it  appeared  that  the  letter  of 
direction  was  probably  a  forgery,  but  the  Master  of  the  Rolls 
held  that,  whether  it  was  so,  or  not,  the  decree  must  issue ; 
deciding  that,  even  if  the  letter  were  genuine,  the  defendants 
had  not  complied  with  the  conditions  it  prescribed,  and  that 
if  a  forgery,  the  mexe  deposit  of  deeds,  by  one  not  author- 
ized, could  not,  of  itself,  create  an  equitable  mortgage  on  the 
property  against  the  rights  of  the  true  owner.  Sir  John 
Romilly's  decision  was  affirmed,  on  appeal,  by  Giffard,  V.  C. 
The  case  is  valuable  in  showing  the  effect  of  the  mere  deposit 
of  title-deeds,  and  of  the  conditions  necessary  to  create  the 
presumption  of  such  an  agreement  that  equity  will  enforce 
it  as  an  equitable  mortgage. 

1  Jones  v.  Williams,  24  Beav.  55. 

2  Parry,  ex  parte,  3  M.  D.  &  De  G.  252. 
8  Burton  v.  Gray,  L.  R.  8  Ch.  932. 


CH.   V.]  CONVEYANCES   BY   OPERATION   OF   LAW,   ETC.  77 

§  63.  The  whole  doctrine  of  the  creation,  by  the  deposit 
of  title-deeds,  of  an  equitable  lien  which  is  preferred  to  a 
subsequent  purchaser  or  mortgagee  of  the  legal  estate  with 
notice,  has  been  condemned  by  the  most  eminent  English 
judges,  and  the  disposition  of  the  courts  is  to  restrict  rather 
than  to  enlarge  its  operation.  It  is  not  therefore  ordinarily 
applied  to  enforce  parol  agreements  to  make  a  mortgage  or 
to  make  a  deposit  of  title-deeds  for  that  purpose.1 

§  64.  The  doctrine  of  equitable  mortgages  arising  upon 
the  deposit  of  title-deeds  does  not  prevail  generally  in  this 
country.  It  is,  however,  accepted  in  New  York,2  in  Rhode 
Island,3  in  Wisconsin,4  apparently  in  South  Carolina,5  and 
perhaps  in  Maine.8  In  North  Carolina,7  in  Pennsylvania,8 
in  Tennessee,9  in  Ohio,10  in  Alabama,11  and  apparently  in 
Kentucky,12  it  is  rejected.  In  Vermont13  it  has  been  treated 
as  an  open  question.  In  Mississippi 14  it  appears  that  the 
deposit  of  title-deeds  may  effect  an  equitable  mortgage  for  a 
term  of  time  not  longer  than  that  for  which,  by  the  statute  as 
there  re-enacted,  an  estate  in  land  may  be  created  verbally. 

§  65.  Upon  the  question  whether  a  mortgage  of  land  is  a 
conveyance  within  the  Statute  of  Frauds,  so  as  to  be  not 
assignable  without  writing,  very  eminent  authorities  are 

1  2  Story  Eq.  Jur.  §  1020;  4  Kent  Com.  151. 

2  Rockwell  v.  Hobby,  2  Sand.  Ch.  9.     See  Jackson  v.  Parkhurst,  4 
Wend.  376;  Hammond  v.  Bush,  8  Abb.  Pr.  166;  Chase  y.  Peck,  21  N.  T. 
584. 

Hackett  v.  Reynolds,  4  R.  I.  512. 
Jarvis  v.  Dutcher,  16  Wise.  307. 
Welsh  v.  Usher,  2  Hill  Ch.  166. 
Hall  v.  McDuff,  24  Me.  311. 
Harper  ».  Spainhour,  64  N.  C.  629. 

Bowers  v.  Oyster,  3  Penn.  Rep.  239;  Shitz  v.  Dieffenbach,  3  Pa.  St. 
233;  Rickett  v.  Madeira,  1  Rawle,  325. 
9  Meador  ».  Meador,  3  Heiskell,  562. 

10  Probasco  i».  Johnson,  2  Disney,  96. 

11  Lehman  v.  Collins,  69  Ala.  127. 

12  Vanmeter  r.  McFaddin,  8  B.  Mon.  435. 
18  Bicknell  r.  Bioknell,  31  Vt.  498. 

"  Gothard  v.  Flynn,  25  Miss.  58. 


78  STATUTE   OF  FEAUDS.  [CH.   V. 

divided.  In  the  case  of  Martin  v.  Mowlin,  decided  as  early 
as  1760,  the  question  before  the  court  seems  to  have  been, 
whether,  under  a  general  bequest  of  a  testator's  personal 
property,  including  his  debts,  his  interest  as  mortgagee  of 
land  would  pass.  Lord  Mansfield  said :  "  A  mortgage  is  a 
charge  upon  the  land :  and  whatever  would  give  the  money 
will  carry  the  estate  in  the  land  along  with  it,  to  every  pur- 
pose. The  estate  in  the  land  is  the  same  thing  as  the  money 
due  upon  it.  It  will  be  liable  to  debts ;  it  will  go  to  execu- 
tors ;  it  will  pass  by  a  will  not  made  and  executed  with  the 
solemnities  required  by  the  Statute  of  Frauds.  The  assign- 
ment of  the  debt,  or  forgiving  it,  will  draw  the  land  after  it 
as  a  consequence:  nay,  it  would  do  it,  though  the  debt  were 
forgiven  only  by  parol ;  for  the  right  to  the  land  would  follow, 
notwithstanding  the  Statute  of  Frauds. " 1  The  view  here 
taken  by  Lord  Mansfield  is  adopted  by  Powell  in  the  Treatise 
on  Mortgages,  but  vigorously  opposed  by  Mr.  Roberts  in  his 
work  upon  the  construction  of  the  statute.2  Considering  a 
mortgage  according  to  its  strict  legal  effect,  we  should  say 
with  the  latter  author  that  "it  should  seem  extraordinary 
indeed  that,  with  respect  to  that  part  of  the  complex  trans- 
action called  a  mortgage,  which  consists  in  the  conveyance  of 
the  land  itself,  the  Statute  of  Frauds  should  be  restrained 
from  applying  to  it."  The  doctrine  in  Martin  v.  Mowlin, 
however,  is  that  of  courts  of  equity  both  in  this  country 
and  in  England,  and  the  tendency  of  the  courts  of  law  has 
been  constantly  towards  conformity  with  it.3  In  the  different 
States  of  the  Union,  opposite  views  upon  this  question  are 
strongly  asserted,  although  upon  the  whole  the  preponderance 
of  judicial  opinion  may  be  fairly  said  to  be,  that  a  mortgagee's 
interest  will  pass,  at  law  as  well  as  in  equity,  with  the  debt 

1  Martin  v.  Mowlin,  2  Burr.  978. 

2  Powell  on  Mortgages,  187 ;  Roberts  on  Frauds,  272. 

8  Thornbrough  v.  Baker,  Cas.  in  Ch.  283;  Matthews  v.  Wallwyn,  4 
Ves.  118,-  Richards  v.  Syms,  Barn.  Ch.  90,  per  Lord  Hardwicke;  Green 
v.  Hart,  1  Johns.  (N.  Y.)  580;  Aymar  v.  Bill,  5  Johns.  (N.  Y.)  Ch  570; 
2  Story  Eq.  Jur.  §§  1013-1018;  4  Kent  Com.  160. 


CH.   V.]  CONVEYANCES   BY   OPERATION  OF   LAW,   ETC.  79 

to  which  it  is  collateral,  and  consequently  without  the  for- 
malities imposed  by  the  statute  upon  the  alienation  of  lands.1 

i  1  Powell  on   Mortgages,   187;   Rex  v.  St  Michael's,  2  Doug.    630; 
Eaton  u.  Jaques,  2  Doug.  455;  Chimney  v.  Blackburne,  1  H.  Bl.  117,  note  ; 
Silvester  v.  Jarman,  10  Price,  78;  4  Kent  Com.  160.     The  doctrine  in 
Martin  v.  Mowlin  has  been  affirmed  in  New  York,  both  at  law  and  in 
equity.     Green  ».  Hart,  1  Johns.  580 ;  Jackson  v.  Willard,  4  Johns.  41 ; 
Runyan  v.  Mersereau,  11  Johns.  534;  Wilson  v.  Troup,  2  Cowen,  195; 
Johnson  v.  Hart,  3  Johns.  Cas.  322 ;  Aymar  v.   Bill,  5  Johns.  Ch.  570 ; 
Jackson  v.  Bronson,  19  Johns.  325;  Gillett  r.  Campbell,  1  Denio,  520. 
And  in  the  New  York  Court  of  Appeals,  Malins  v.  Brown,  4  N.  Y.  403, 
it  was  said  that,  such  being  the  law  of  that  State,  it  was  doubtful  if  a 
parol  agreement  to  discharge  the  mortgage  without  payment  of  the  debt 
would  not  be  good.    It  is  adopted  also  in  New  Hampshire,  Southerin  v. 
Mendum,  5  N.  H.  420,  432;  Rigney  v.  Lovejoy,  13  N.   H.  247;  Bell  v. 
Morse,  6  N.  H.  205;  Ellison  v.  Daniels,  11  N.  H.  274;  Parish  v.  Oilman- 
ton,  11  N.  H.  298;  Whittemore  v.  Gibbs,  24  N.  H.  484;  Page  v.  Pierce, 
26  N.  H.  317.     In  Connecticut,  Crosby  v.  Brownson,  2  Day,  425 ;  Dudley 
v.  Cadwell,  19  Conn.  218;  Clark  a.  Beach,  6  Conn.  159;  Huntington  r. 
Smith,   4   Conn.    235;  Barkhamsted   v.  Farmington,  2  Conn.    600.     In 
Vermont,   Pratt  v.  Bank  of  Bennington,  10  Vt.    293;  Keyes  v.  Wood, 
21    Vt.  331 ;  fielding  v.  Manley,  21  Vt.  550 ;  Mussey  v.  Bates,  65  Vt. 
449.     In  Illinois,  McConnell  v.  Hodson,  2  Gilra.  640;  Mapps  v.  Sharpe, 
32  111.   13.     In   Kentucky,   Burdett  v.  Clay,  8  B.  Mon.  287;  Waller  ». 
Tate,  4  B.  Mon.  529.     In  Mississippi,  Dick  v.  Mawry,  9  Smedes  &  M. 
448;  Lewis  v.  Starke,  10  Smedes  &  M.   120;  Henderson  v.  Herrod,   10 
Smedes  &  M.  631.    In  Tennessee,  Ewing  v.  Arthur,  1  Humph.  537.     In 
Alabama,  McVay  v,  Bloodgood,  9  Port.  547.     In   California,  Bennett  r. 
Solomon,  6  Cal.   134;  Tapia  v.  Demartini,  77  Cal.  383.     In  Iowa,  Bank 
of  the  State  of  Indiana  v.  Anderson,  14  Iowa,  544.     In  Wisconsin,  Croft 
v.  Bunster,  9  Wise.  503.   In  Louisiana,  Scott  v.  Turner,  15  La.  Ann.  346. 
In  Michigan,  Martin  v.  McReynolds,  6  Mich.  70.     In  Missouri,  Potter  v. 
Stevens,  40  Mo.  229.     In  North  Carolina,  Hyman  v.  Deverenx,  63  N.  C. 
624.    In  Ohio,  Paine  v.  French,  4  Ohio,  318.    In  Texas,  Perkins  v.  Sterne. 
23  Tex.  561.      In   Massachusetts,  it   is  held  that,  upon  the  transfer  of 
the  debt,  the  equitable  title  to  the  mortgage  is  in  the  transferee,  but  the 
legal  title  remains  in  the  transferor,  the  parties  holding  to  each  other  the 
relation  of  cestui  que  trust  and  trustee.     Parsons  r.  Welles,  17  Mass.  419, 
423;  Crane  v.  March,  4  Pick.  131;  Young  v.  Miller,  6  Gray,  152;  Wolcott 
i«.  Winchester,  15  Gray,  464.     See  Morris  r.  Bacon,  123  Mass.  58.     It  is 
rejected  in  Maine,  see  Vose  v.  Handy,  2  Greenl.  322,  per  Mellen,  C.  J. ; 
Smith  P.  Kelley,  27  Me.  237.     And  perhaps  in  New  Jersey,  McDermnt  »-. 
Butler,  5  Halst.  Law,  158;  but  see  Sayre  r.  Fredericks,  16  N.  J.  Eq.  205; 
and  in   Maryland,  Evans  ».  Merriken,  8  Gill  &  J.  39.     In  those  States 
where  paying  the  debt  does  not  discharge  the  mortgage,  of  course  a  parol 


80  STATUTE   OF  FRAUDS.  [CH.   V. 

This  doctrine  is  not  opposed  by  the  circumstance  that  in 
many  of  the  States  provision  is  made  for  the  discharge  of 
mortgages,  after  payment,  by  the  entry  of  satisfaction  in  the 
margin  of  the  registry ;  for  this  may  mean  only  to  provide  a 
remedy  for  damages  sustained  by  the  refusal  of  the  mort- 
gagee to  put  an  acknowledgment  of  such  payment  on  record.1 

§  66.  It  has  been  suggested  that  the  equitable  doctrine  we 
have  been  considering  might  be  better  reconciled  with  the 
statute  by  regarding  the  mortgagee's  interest  as  passing 
(upon  the  assignment  of  the  debt)  by  way  of  a  trust,  which 
trust,  as  it  arises  by  operation  of  law,  would  be  saved  from 
the  section  of  the  statute  which  is  directed  against  verbal 
evidence  of  trusts  in  land.  But  besides  the  difficult}7  of 
bringing  such  a  case  fairly  within  the  terms  of  that  section, 
it  seems  unnecessary  to  go  beyond  the  plain  rule  derived 
from  the  nature  of  the  contract  of  mortgage  as  interpreted  to 
be,  on  the  one  hand  a  conditional  sale  of  the  land,  or  on  the 
other  a  mere  security  for  the  debt.2  It  appears,  however, 
that  a  mortgage  could  never  pass  by  mere  parol  gift,  for  want 
of  the  possibility  of  actual  delivery  of  either  the  debt  or  the 
security. 8 

§  67.  The  most  common  of  those  cases  in  which  the  verbal 
agreements  of  the  parties,  attended  by  certain  acts  in  pais, 
are  sometimes  said  to  transfer  the  title  to  land,  are  verbal 
partitions  and  verbal  exchanges,  each  followed  by  possession 
accordingly.  Verbal  licenses  to  be  exercised  upon  land, 
which  might,  in  one  view,  belong  to  this  division  of  the  sub- 
ject, have  already  been  discussed  under  the  head  of  leases. 

§  68.  At  common  law,  partitions  might  be  made  between 
joint  tenants  by  deed  only,  between  tenants  in  common  by 


agreement  to  make  no  claim  under  a  mortgage,  though  the  debt  remain, 
cannot  be  enforced.  Parker  v.  Barker,  2  Met.  (Mass.)  423;  Hunt  v. 
Maynard,  6  Pick.  (Mass.)  489. 

1  Gray  v.  Jenks,  3  Mas.  (C.  C.)  520;  4  Kent  Com.  193-196,  4th  ed. 

2  2  Greenl.  Cruise,  91. 

8  Roberts  on  Frauds,  277. 


CH.   V.]  CONVEYANCES   BY   OPERATION    OF  LAW,   ETC.  81 

livery  only  without  deed,  and  between  coparceners  verbally 
without  deed  or  livery.  Since  the  Statute  of  Frauds,  it  is 
settled  in  England  that  tenants  in  common  and  coparceners 
can  only  make  partition  by  writing,  as  provided  in  the 
statute;  while  the  necessity  for  a  deed  between  joint  tenants 
remains  as  at  common  law.1  In  several  of  the  United  States, 
however,  partitions  between  tenants  in  common,  followed  by 
occupation  in  severalty,  have,  for  certain  purposes,  been  held 
valid  without  writing,  even  at  law.  Thus  in  New  York,  in 
the  case  of  Jackson  v.  Bradt,  in  1804,  tenants  in  common 
had  made  partition  and  had  occupied  in  severalty  for  fifty 
years ;  but  there  was  never  any  writing  between  them,  except 
a  covenant  (though  in  the  report  it  is  designated  as  a  deed  of 
partition),  made  after  the  division,  by  which  they  agreed 
with  each  other,  for  themselves,  their  heirs  and  assigns,  that 
the  division  so  made  and  done  should  thenceforth  and  forever 
stand  and  remain.  On  the  trial  it  was  objected  that  this 
deed  was  a  mere  covenant,  and  did  not  contain  the  necessary 
granting  words  to  sever  the  estate.  Kent,  J.,  said  upon  this 
part  of  the  case:  "The  division  and  the  deed  between  the 
proprietors  by  which  they  covenanted  to  abide  by  it,  and  the 
separate  possessions  taken  in  pursuance  of  that  division,  were 
sufficient  to  sever  the  tenancy  in  common,  which  consisted  in 
nothing  but  a  unity  of  possession."  The  deed  being  inopera- 
tive as  such,  it  would  seem  to  be  the  effect  of  this  decision, 
that  the  division  and  the  separate  possession  were  sufficient 
to  effect  a  valid  partition  for  the  purposes  of  the  plaintiff, 
who  sued  in  ejectment  against  a  mere  tenant  at  will.2  In 
Jackson  v.  Harder  it  was  held  that  a  plaintiff,  upon  proof  of 
parol  partition  and  separate  possession,  could  recover  in  an 
action  of  ejectment  against  a  mere  intruder.3  In  Jackson  v. 

1  Roberts  on  Frauds,  285  ;  2  BF.  Com.  323  ;  Allnatton  Partitions,  130; 
Johnson  r.  Wilson,  Willes,  248;  Ireland  r.  Kittle,  1  Atk.  541 ;  Whaley  v. 
Dawson,  2  Schoales  &  L.  367. 

2  Jackson  v.  Bradt,  2  Caines.  169. 
8  Jackson  v.  Harder,  4  Johns.  202. 

6 


82  STATUTE   GF  FRAUDS.  [CH.   V. 

Vosburgh,  the  defendant  in  ejectment  gave  evidence  tending 
to  show  parol  partition  and  occupation  in  accordance  with  it, 
but  offered  no  proof  of  a  tenancy  in  common  among  those 
whom  he  alleged  to  have  made  it.  The  plaintiff  alleged  that 
the  title  to  the  whole  had  vested  in  his  grantor,  as  heir-at- 
law.  The  plaintiff  had  judgment,  and  the  court,  on  appeal, 
affirmed  it,  holding  that  enough  had  not  b.een  proved  by  the 
defendant  to  devest  the  plaintiff  of  his  title  as  claimed  under 
the  heir-at-law.1  In  Ryerss  v.  Wheeler,  it  was  held,  that 
ejectment  could  be  maintained  against  a  stranger,  upon 
proof  of  partition,  although  it  did  not  appear  that  all  the 
tenants  in  common  had  acquiesced  in  it.2  In  Wood  v.  Fleet, 
said  in  the  opinion  of  the  Court  of  Appeals  to  be  an  action 
brought  to  "affect  a  division  or  partition  of  real  estate,"  a 
parol  partition  had  been  made  by  two  brothers,  tenants  in 
common,  by  which  the  referee  found  the  property  to  have 
been  fairly  divided.  One  of  them  had  made  a  quitclaim 
deed,  and  the  possession  had  continued  nearly  twenty  years. 
Under  these  circumstances  the  court  declined  to  set  the  par- 
tition aside  at  the  suit  of  the  sister  of  the  co-tenants,  who 
before  the  partition  had  conveyed  to  them  all  her  interest  in 
the  property  previously  held  in  common  by  the  three.3 

§  69.  In  Mississippi,  where  a  parol  partition  was  sought  to 
be  sustained  by  a  bill  in  equity  for  specific  performance,  it 
was  held  that  such  an  agreement  was  "  not  within  the  letter 
or  spirit  of  the  Mississippi  statute,  which  only  affects  con- 
tracts for  the  sale  of  lands."  4  The  same  decision  was  made 
in  Texas,  under  a  similar  provision  of  the  statute  of  that 
State,6  also  in  Tennessee.6  In  North  Carolina,  in  an  action 
of  trespass  brought  by  one  co-tenant  against  the  other,  the 

1  Jackson  v.  Vosburgh,  9  Johns.  270. 

2  Ryerss  v.  Wheeler,  25  Wend   434. 
8  Wood  v.  Fleet,  36  N.  Y.  499. 

4  Natchez  v.  Vandervelde,  31  Miss.  706. 

6  Stuart  v.  Baker,  17  Texas,  417  ;  Aycock  v.  Kimbrough,  71  Texas,  330; 
Martin  v.  Harris,  26  S.  W.  Rep.  (Tex.)  91. 
6  Meachara  v.  Meacham,  91  Tenn.  532. 


CH.   V.]  CONVEYANCES   BY   OPERATION   OF  LAW,  ETC.  83 

plaintiff  proved  the  co-tenancy  and  parol  partition,  and  rested. 
Defendant  then  moved  for  a  nonsuit,  which  was  granted,  and 
confirmed  on  appeal.1  But  in  a  similar  action  in  Illinois, 
where  the  plaintiff  offered  evidence  of  a  parol  partition,  and 
it  was  excluded,  this  ruling  was  held  erroneous,  on  appeal.2 

§  70.  An  oral  agreement  for  partition,  followed  by  entry 
and  occupation,  which  might  be  enforced  in  equity  by  a  bill 
for  specific  performance  of  the  express  or  implied  agreement 
of  either  party  to  convey  his  interest  in  the  portion  assigned 
to  the  other,  has  been  held  a  sufficient  defence  to  an  action 
of  ejectment  brought  by  one  partitioner  against  the  other's 
grantee,  to  recover  an  undivided  half  of  the  premises  thus 
granted.3 

§  71.  The  decisions  in  other  States  seem  to  favor  the  Eng- 
lish view  of  this  question,  and  to  be  opposed  to  allowing  a 
verbal  partition  to  be  effectual,  even  to  sever  the  possessions 
of  tenants  in  common.4  In  New  Jersey,  particularly,  the  sub- 

1  McPherson  v.  Seguine,  3  Dev.  Law,  153,  citing  Anders  v.  Anders, 
2  Dev.  Law,  529;  Medlin  v.  Steele,  75  N.  C.  154. 

2  Grimes  v.  Butts,  65  111.  347. 

8  Buzzell  17.  Gallagher,  28  Wise.  678.  See  Tomlin  v.  Hilyard,  43  HI. 
300.  But  where  a  creditor,  having  a  judgment  against  one  co-tenant, 
was  about  to  enforce  it  upon  the  land  held  in  common,  the  other  co- 
tenant  brought  a  bill  in  equity  to  stay  execution  upon  a  part  of  the  land, 
which  he  alleged  had  been  set  aside  to  him  by  an  oral  partition,  after 
which  quit-claim  deeds  were  made,  but  the  deed  to  him  was  not  recorded 
until  after  the  judgment  debt  was  incurred.  The  bill  was  dismissed  on 
the  ground  of  the  complainant's  laches  in  failing  to  record  his  deed. 
Manly  v.  Pettee,  38  Til.  128;  Tate  v.  Foshee,  117  Ind.  322;  McKnight  v. 
Bell,  135  Pa.  St.  358;  Wolf  v.  Wolf,  158  Pa.  St.  621;  Mellon  v.  Read, 
114  Pa.  St.  647. 

4  Porter  ».  Perkins,  5  Mass.  233;  Porter  v.  Hill,  9  Mass.  34;  Watson  v. 
Kelly,  1  Harr.  (N.  J.)  517  ;  Woodhull  v.  Longstreet,  3  Harr.  (X.  J.)  405; 
Richman  «;.  Baldwin,  1  Zab.  (N.  J.)  395;  Lloyd  v.  Conover,  1  Dutch. 
(N.  J.)  47;  Stuart  v.  Baker,  17  Texas  417;  Goodhue  ».  Barnwell,  Rice, 
(S.  C.)  Eq.  198;  Chenery  v.  Dole,  39  Me.  162;  Ballou  v.  Hale,  47  N.  H. 
347.  See  Hill  v.  Meyers,  43  Pa  St.  395.  Where  each  co-tenant  had  con- 
veyed away  a  portion  of  the  estate  equal  to  the  amount  of  his  share,  it 
was  held  in  Eaton  v.  Tallmadge,  24  Wise.  217,  that  the  two  conveyances 
amounted  to  a  valid  partition,  but  this  was  denied,  and  semble  rightly, 
in  Duncan  v.  Sylvester,  16  Me.  388 ;  White  v.  O'Bannon,  86  Ky.  93. 


84  STATUTE   OF  FRAUDS.  [CH.   V. 

ject  has  received  a  very  full  and  able  examination,  and  the 
reasoning  of  the  court  is  in  the  highest  degree  satisfactory. 
Hornblower,  C.  J.,  in  delivering  the  judgment  of  the  Supreme 
Court  of  that  State  against  the  validity  of  such  a  partition, 
said :  "  If  the  partition  .  .  .  was  valid  in  law,  when  did  it 
become  so  ?  As  soon  as  it  was  verbally  agreed  to,  or  not 
until  they  severally  took  possession  ?  What,  then,  shall 
amount  to  such  possession  as  to  bind  the  parties  ?  How  long 
must  it  continue  ?  If  for  any  period  less  than  twenty  years, 
why  not  ten  or  five  years,  or  one  year  or  a  month,  or  day  ? 
Again,  suppose  two  out  of  three,  or  nine  out  of  ten  co-tenants 
enter  upon  their  respective  shares,  take  possession,  and 
make  improvements  in  pursuance  of  a  parol  partition;  or 
suppose  the  lands  are  not  of  such  a  character  as  to  be  sus- 
ceptible of  an  actual  inclosure  or  occupation  ;  what  is  to  be 
done  in  such  cases  ?  ...  It  is  a  mistake,  in  my  opinion,  to 
suppose  that  tenants  in  common  have  not  such  a  community 
of  estate  as  requires  under  the  interest  a  deed  or  writing  to 
put  an  end  to.  It  is  true  they  have  only  a  privity  of  pos- 
session, but  that  privity  gives  each  tenant  in  common  a  free- 
hold in  every  part  of  the  undivided  tract,  a  right  of  possession 
in  every  square  foot  of  it.  Such  a  right  is  an  interest  in  land 
that  cannot  be  transferred,  by  the  very  terms  of  the  statute, 
but  by  writing. "  1 

§  72.  It  is  worthy  of  remark,  that  in  all  the  English  cases 
which  have  been  referred  to,  the  separate  possession  had 
existed  for  more  than  twenty  years  after  the  verbal  partition 
had  been  made ;  nor  does  the  question  of  the  effec^  at  law  of 
such  possession,  continued  for  a  less  time,  appear  to  have 
arisen.  In  the  case  of  Woodhull  v.  Longstreet,  just  quoted, 
where  it  had  been  continued  five  or  six  years  only,  and  it 
was  decided  that  it  had  no  effect  to  sever  the  possession, 
Hornblower,  C.  J.,  speaking  of  the  leading  New  York  case, 
Jackson  v.  Bradt,  says :  "  If  the  court  intended  to  say  that 

i  Woodhull  ».  Longstreet,  3  Harr.  405. 


CH.   V.]  CONVEYANCES   BY   OPERATION   OF  LAW,   ETC.  85 

a  parol  partition,  followed  by  twenty  years'  possession  in 
conformity  with  it,  will  be  sufficient,  I  shall  not  differ  with 
them. "  And  there  seems  to  be  no  reason  why  the  presump- 
tion of  a  valid  grant  after  the  lapse  of  twenty  years  should 
not  prevail  in  such  cases,  as  in  others  of  adverse  possession 
for  that  length  of  time.1  But  it  is  held  that  where  a  parol 
partition  has  been  made  between  tenants  in  common,  and 
possession  held  in  severalty  according  to  it  for  a  considerable 
period,  though  for  less  than  twenty  years,  upon  a  suit  in 
equity  afterwards  brought  to  compel  a  partition,  the  division 
thus  made  and  acted  on  by  the  parties  will  be  considered 
fair  and  equal.2 

§  73.  It  may  be  remarked,  in  regard  to  partitions  between 
joint  tenants,  that  as  the  reasoning  adopted  in  cases  of  tenants 
in  common,  namely,  that  the  only  privity  by  which  they  are 
united  is  privity  of  possession,  and  that  their  several  posses- 
sions may  be  well  ascertained  without  writing,  is  inapplica- 
ble, the  law  remains  the  same  as  before  the  statute,  and  such 
a  partition,  to  be  valid,  must  be  by  deed.3 

§  74.   In  courts  of  equity,  verbal  partitions  are  often  treated 

1  Marcy  v.  Marcy,  6  Met.  (Mass.)  360;  Ball  v.  Brown,  5  Gush.  (Mass.) 
289;  Duncan  v.  Sylvester,  16  Me.  388;  Townsend  u.  Downer,  32  Vt.  183. 

2  Priugle  v.  Sturgeon,  Litt.  (Ky.)  Sel.  Cas.  112;  Polhemus  v.  Hodson, 
19  N.  J.  Eq.  63;  Moore  v.  Kerr,  46  Ind.  468;  Hazen  v.  Barnett,  50  Mo. 
506.     Compare  Wood  v.  Fleet,  36  N.  Y.  499.     Whatever  latitude  may 
be  allowed  in  effecting  a  partition  between  tenants  in  common,  a  mere 
sale  or  contract  of  sale  by  one  of  them  to  the  other  of  part  or  the  whole 
of  his  property,  must  be  in  writing;  for  the   Statute  of  Frauds  applies 
to  any  contract  for  a  transfer  of  an  interest  in  land,  between  whatsoever 
descriptions  of   parties   it  is  made.     Galbreath  v.  Galbreath,  5  Watts 
(Pa.)  146. 

8  4  Greenl.  Cruise,  77;  Roberts  on  Frauds,  283-285;  Porter  v.  Hill, 
9  Mass.  34.  And  see  as  to  partition  by  tenants  in  mortgage,  Perkins  v. 
Pitts,  11  Mass.  125.  In  Haughabaugh  v.  Honald,  1  Tread.  (S.  C.)  90,  it 
was  said  that  a  joint  tenancy  might  be  severed  like  a  tenancy  in  common; 
but  the  case  was  decided  upon  other  points.  Where  an  estate  is  held  by 
an  equitable  title,  it  is  said  that  partition  may  be  made  by  parol.  Maul  v. 
Rider,  51  Pa.  St.  377;  Dow  v.  Jewell,  18  N.  H.  340.  But  compare  §  229, 
post. 


86  STATUTE   OF  FKAUDS.  [CH.    V. 

as  contracts,  which,  when  followed  by  possession,  will  be 
specifically  enforced  in  like  manner  as  other  contracts  for 
land,  upon  the  equitable  ground  of  part-performance.  Such 
cases  seem  to  belong  entirely,  therefore,  to  a  subsequent  part 
of  this  treatise,  where  the  principles  upon  which  courts  of 
equity  proceed  in  cases  of  part-performance  of  contracts 
affected  by  the  Statute  of  Frauds  are  considered.  It  may  be 
mentioned  that  this  appears  to  be  the  proper  view  in  which 
to  regard  the  numerous  Pennsylvania  decisions  on  this  sub- 
ject; the  custom  of  the  law  courts  of  that  State  being  to 
administer  equity  through  the  forms  of  law.1 

§  74  a.  The  proprietors  of  common  and  undivided  lands,  in 
the  New  England  States,  holding  their  lands  by  a  grant  from 
the  State,  have  been  accustomed,  it  is  said,  from  very  early 
times,  to  make  partition  of  their  lands  by  vote,  without  deed, 
and  these  parol  partitions  have  always  been  sustained  by  the 
courts,  an  exception  to  the  strict  rule  of  law  being  made  in 
their  favor,  to  avoid  the  mischief  and  public  inconvenience 
which  would  result  if  the  custom  that  had  so  long  prevailed 
should  be  declared  contrary  to  the  law.2  In  the  cases  cited 
below,  attempts  have  sometimes  been  made  to  find  some  other 
explanation,  but  the  doctrine  has  generally  been  regarded  as 
exceptional,  and  supported  only  on  the  grounds  of  custom 
and  expediency.3 

1  McMahan  v.  McMahan,  13  Pa.  St.  376;  Ebert  v.  Wood,  1  Binn.  216; 
Galbreath  v.  Galbreath,  5  Watts,  146;  Calhoun  v.  Hays,  8   Watts  &  S. 
127;  Rhodes  v.  Frick,  6  Watts,  315;  Rhine  v.  Robinson,  27  Pa.   St.  30. 
See  also  Weed  v.  Terry,  2  Doug.  (Mich.)  344 ;  Cummins  v.  Nutt,  Wright 
(Ohio)  713;  Goodhue  v.  Barn  well,  Rice  (S.  C.)  Eq.  198;  Young  ».  Frost, 
1  Md.  377;   Sweeny  v.  Miller,  34   Me.  388;    Buzzell  v.   Gallagher,  28 
Wise.  678;  Bruce  v.  Osgood,  113  Ind.  360. 

2  Coburn  v.  Ellenwood,  4  N.  H.  99. 

3  Codman  v.  Winslow,  10  Mass.  146 ;  Coburn  «.  Ellenwood,  4  N.  H. 
99;  Corbett  v.  Norcross,  35  N.  H.  99;  Thorndike  v.    Barrett,  3  Greenl. 
(Me.)  380;    Cary  v.  Whitney,  48  Me.  526;  Abbot  v.  Mills,  3  Vt.  521; 
Stiles  v.  Curtis,  4  Day  (Conn.)  328.     In  Angell  &  Ames,  Corporations, 
Chap.  VI.,  these  proprietorships  are  treated  as  quasi  corporations,  and 
receive  a  full  and  careful  discussion. 


CH.   V.]  CONVEYANCES   BY  OPERATION   OF   LAW,   ETC.  87 

§  75.  Where  the  proprietors  of  adjoining  lands  have  agreed 
by  parol  upon  a  line  for  the  settlement  of  a  disputed  boundary 
between  their  estates,  and  taken  possession  accordingly,  such 
agreement  and  occupation  is  evidence  that  the  line  agreed 
upon  is  the  true  boundary,1  and,  in  the  absence  of  higher  evi- 
dence of  title,  may  be  decisive.2  Occupation  in  accordance 
with  the  agreement,  if  continued  and  acquiesced  in  by  the 
parties  during  the  length  of  time  required  to  bar  entry,  will 
give  an  indefeasible  title;3  but  occupying  and  improving  the 
land  up  to  the  line  will  not,  in  the  absence  of  actual  fraud, 
bar  an  action  by  the  other  party  to  recover  possession,  brought 
before  the  statutory  period  has  elapsed.4  The  oral  agreement 
as  to  the  boundary  will  be  a  license  to  either  party  to  enter 
and  occupy  up  to  the  line  so  fixed,  and  a  justification  of  any 
trespass  committed  by  so  doing,  until  notice  of  revocation  is 
given.6  It  seems  to  have  been  held  in  Tennessee,  that  if 

1  Whitney  v.  Holmes,  15  Mass.  152;  Byam  v.  Robbins,  6  Allen  (Mass.) 
63;  Prop'rs  Liverpool  Wharf  v.  Prescott,  4  Allen  (Mass.)  22;  Davis  v. 
Townsend,  10  Barb.  (N.  Y.)  333;  Raynor  v.  Timerson,  51  Barb.  (N.  Y.) 
517;  Meyers  v.  Johnson,  15  Ind.  261.  See  Carleton  v.  Redington,  21  N. 
H.  291 ;  Evars  v.  Kamphaus,  59  Pa.  St.  379. 

8  Vosburgh  v.  Teator,  32  N.  Y.  561 ;  Goodridge  v.  Dustin,  5  Met. 
(Mass.)  363;  Dudley  v.  Elkins,  39  N.  H.  78;  Lindsay  v.  Springer,  4  Harr. 
(Del.)  547;  Russell  v.  Maloney,  39  Vt.  583;  Shelton  v.  Alcox,  11  Conn. 
240.  See  Kincaid  v.  Dormey,  47  Mo.  337 ;  Smith  t;.  Hamilton,  20  Mich. 
433;  Ferguson  r.  Crick,  23  S.  W.  Rep.  (Ky.)  668;  Grigsby  v.  Combs, 
21  S.  W.  Rep.  (Ky.)  37. 

8  Boyd  v.  Graves,  4  Wheat.  (U.  S  )  513  ;  Jones  v.  Smith,  64  N.  Y. 
180 ;  Davis  v.  Judge,  46  Vt.  655.  See  §  269,  post;  John  v.  Sabattis,  69 
Me.  473 ;  White  v.  Spreckels,  75  Cal.  610. 

4  Prop'rs  Liverpool  Wharf  v.  Prescott,  4  Allen  (Mass.)  22;  Brewer  p. 
Boston  &  Worcester  R.  R.,  5  Met.  (Mass.)  478;  Tolman  v.  Sparhawk, 
5  Met.  (Mass.)  469 ;  Raynor  v.  Timerson,  51  Barb.  (N.  Y.)  517 ;  Warner 
v.  Fountain,  28  Wise.  405.  See  Story  Eq.  Jur.  §  1543;  Reed  v.  Farr,  35 
N.  Y.  113.  Contra,  Jones  r.  Pashby,  67  Mich.  459;  Coleman  v.  Smith, 
55  Texas  254;  Cavanaugh  v.  Jackson,  91  Cal.  580;  Turner  r.  Baker,  64 
Mo.  218;  Krider  v.  Milner,  99  Mo.  145;  Jacobs  v.  Mosely,  91  Mo.  457; 
Bobo  v.  Richmond,  25  Ohio  St.  115. 

6  Dewey  v.  Bordwell,  9  Wend.  (N.  Y.)  65;  Sellick  v.  Addams,  15 
Johns.  (N.  Y.)  197  ;  Palmer  v.  Anderson,  63  N.  C.  365.  See  Whitney  r. 
Holmes,  15  Mass.  152 ;  Davis  v.  Townsend,  10  Barb.  (X.  Y.)  333. 


88  STATUTE   OF  FRAUDS.  [CH.   V. 

money  be  paid  by  either  party  upon  the  parol  settlement  of 
the  boundary  line,  even  where  it  had  been  previously  in  dis- 
pute, the  settlement  will  be  invalid.1 

§  76.  By  the  common  law  a  parol  exchange  of  lands  situate 
in  the  same  county  was  good,  provided  each  party  went  into 
possession  of  the  lands  acquired  by  such  exchange.  This  was 
one  of  the  ancient  common-law  methods  of  transferring  real 
estate,  adopted  at  a  time  when  writing  was  practised  or  un- 
derstood but  by  few  individuals,  and  it  is  embraced  in  the 
general  reform  effected  by  the  Statute  of  Frauds.  It  is  un- 
doubtedly the  settled  law  of  this  country,  as  of  England,  that 
a  conveyance  of  lands  by  verbal  exchange  or  barter  merely  is 
invalid  by  reason  of  that  statute.2  But  in  regard  to  this 
method  of  transfer,  as  in  regard  to  verbal  partitions,  it  must 
be  remembered  that  after  the  agreement  of  the  parties  is  exe- 
cuted by  possession  and  occupation  accordingly,  courts  of 
equity  will  generally  hold  it  binding  upon  conscientious 
grounds,  and  to  prevent  fraud. 

§  77.  The  force  of  the  exception  in  the  third  section  of  the 
statute  in  favor  of  assignments  and  surrenders  which  result 
by  operation  of  law,  has  been  considered  heretofore.  A  few 
matters  belonging  to  the  general  head  of  transfers  by  opera- 
tion of  law  remain  to  be  examined  before  we  close  this 
chapter.  In  Simonds  v.  Catlin,  Kent,  J.,  said  that  the 
words,  "act  and  operation  of  law,"  were  strictly  technical, 
and  referred  to  certain  definite  estates,  such  as  those  by  the 
curtesy  and  dower,  or  those  created  by  remitter;  and  to  these 
may  be  added,  by  way  of  illustration,  transfers  by  bankruptcy 


1  Carroway  v.  Anderson,  1  Humph.  61. 

2  Roberts  on  Frauds,  285 ;  Pembroke  v.  Thorpe,  3  Swanst.  441,  note  ; 
Lindsley  v.  Coates,  1  Ohio,  243 ;  Newell  v.  Newell,  13  Vt.  24 ;  Clark  r. 
Graham,  6  Wheat.  (U.  S.)  577;  Lane  v.  Shackford,  5  N.  H.  130;   Mayd- 
well  v.  Carroll,  3  Harr.  &  J.  (Md.)  361.     See,  however,  in  Pennsylvania, 
Reynolds  v.   Hewett,  27    Pa.  St.    176;  Moss  y.   Culver,  64  Pa.  St.  414; 
Brown  v.  Bailey,  159  Pa.  St.  121;   McLure   v.   Tennille,  89  Ala.  572; 
Savage  v.  Lee,  101  Ind.  514. 


CH.   V.]  CONVEYANCES   BY   OPERATION   OF  LAW,   ETC.  89 

or  succession.1  Where  a  statute  provided  that  the  public 
might  acquire  an  easement  in  land  by  the  consent  of  the 
owner  without  writing,  it  was  said  by  the  Supreme  Court  of 
New  York  that  this  was  a  case  of  a  transfer  by  act  and  opera- 
tion of  law.2  But  it  would  seem  that  it  is  more  properly  a 
legislative  dispensation  with  the  formalities  by  which  the 
grantor's  consent  should  be  made  evident.  His  consent,  his 
individual  act,  still  remains  necessary,  and  is  the  operative 
means  of  making  the  transfer.  The  transfers  which  are 
excepted  are  those  which  take  place  by  act  and  operation  of 
law  merely.  Thus,  an  assignment  of  a  widow's  dower  is  good 
without  deed  or  writing,  for  it  is  not  a  conveyance  to  the 
widow.  She  holds  her  estate  by  appointment  of  law,  and 
only  wants  to  have  that  part  which  she  is  to  enjoy  set  out  and 
distinguished  from  the  rest,  and  this  may  be  done  by  setting 
it  out  by  metes  and  bounds,  as  well  as  by  deed.3 

§  78.  In  the  case  of  Boring  v.  Lemmon,  the  Maryland 
Court  of  Appeals  decided  that  a  deed  from  a  sheriff  to  a 
vendee  at  a  sale  under  a  fi.  fa.  was  not  necessary  to  pass  the 
legal  estate,  but  that  the  land  became  vested  in  the  vendee 
by  operation  of  law.4  This  doctrine  is  opposed  by  the  great 
weight  of  opinion  in  this  country.  Mr.  Justice  Kent,  after 
referring  to  and  criticising  a  remark  of  Lord  Hardwicke,  that 
a  judicial  sale  of  an  estate  took  it  entirely  out  of  the  statute, 
says,  in  the  case  of  Simonds  v.  Catlin,  "I  cannot  consider 
that  observation  in  chancery  as  a  sufficient  authority  to  set 


1  Simonds  v.  Catlin,  2  Caines  (N.  Y.)  61 ;  Briles  v.  Pace,  13  Ired. 
(N.  C.)  279.  See  also  Davis  v.  Tingle,  8  B.  Mon.  (Ky.)  539. 

9  Noyes  v.  Chapin,  6  Wend.  461. 

8  Conant  v.  Little,  1  Pick.  (Mass.)  189;  Jones  ».  Brewer,  1  Pick. 
(Mass.)  314;  Baker  v.  Baker,  4  Greenl.  (Me.)  67;  Pinkham  v.  Gear,  3 
N.  H.  163;  Shattuck  v.  Gragg,  23  Pick.  (Mass.)  88;  Johnson  v.  Neil, 
4  Ala.  166;  Shotwell  v.  Sedam,  3  Ohio,  5. 

4  Boring  v.  Lemmon,  5  Harr.  &  J.  223.  See,  in  further  explanation 
of  the  law  of  Maryland  on  this  point,  Barney  v.  Patterson,  6  Harr.  &  J. 
182;  Fenwick  r.  Floyd,  1  Harr.  &  G.  172;  Remington  v.  Linthicum,  14 
Pet.  (U.  S.)  84. 


90  STATUTE   OF  FRAUDS.  [CH.   V. 

aside  the  plain  letter  of  the  statute.  I  apprehend  the  gen- 
eral practice  has  been  different ;  and  that  upon  sales  under 
the  direction  of  a  master  in  chancery,  as  well  as  sales  by 
sheriffs  at  law,  the  sale  has  uniformly  been  consummated  by  a 
conveyance. "  l  But  it  is  not  clear  that  the  Maryland  doctrine 
has  any  countenance,  even  in  Lord  Hardwicke's  remark. 
That  was  made  in  a  suit  for  specific  execution  of  a  contract 
for  sale,  between  the  master  in  chancery  and  the  defendants, 
and  seems  to  have  no  bearing  on  the  point  that  the  final 
transfer  of  the  estate  may  be  without  a  regular  conveyance. 
This  distinction  is  recognized  in  North  Carolina,  where  the 
opinion  of  Lord  Hardwicke  is  followed,  as  far  as  regards  ex- 
ecutory contracts  to  sell  land.2  Upon  what  principles  that 
opinion  is  to  be  sustained,  as  confined  to  the  executory  con- 
tract, will  be  seen  hereafter ;  but  beyond  doubt,  the  prevailing, 
if  not  universal  doctrine  in  this  country  is,  that  sales  of  land 
by  sheriffs  or  other  public  officers  are  not  to  be  considered  as 
conveyances  by  act  and  operation  of  law,  but  require  to  be 
consummated  regularly  by  deed.3  It  need  hardly  be  said  that 
the  act  of  arbitrators  in  disposing  of  land  under  a  submission 
by  the  parties,  is  not  the  act  of  the  law,  and  that  such  act  is 
void  if  the  submission  be  not  in  writing.4 

1  Simonds  v.  Catlin,  2    Caines  (N".  Y.)  61 ;  Attorney-General  v.  Day, 
1  Ves.  Sr.  218;  Hughes  v.  Jones,  9  Mees.  &  W.  372. 

2  Tate  v.  Greenlee,  4  Dev.  149. 

8  Simouds  ».  Catlin,  and  Tate  v.  Greenlee,  supra;  Catlin  v.  Jackson, 
8  Johns.  (N.  Y.)  520;  Jackson  v.  Bull,  2  Caines  (N.  Y.)  Cas.  301;  Robin- 
son v.  Garth,  6  Ala.  204;  Ennis  v.  Waller,  3  Black.  (Ind.)  472;  Evans  v. 
Ashley,  8  Mo.  177  ;  Alexander  v.  Merry,  9  Mo.  510.  Contra,  Watson  v. 
Violett,  2  Duv.  (Ky.)  332. 

4  Gratz  v.  Gratz,  4  Rawle  (Pa.)  411 ;  Stark  v.  Cannady,  3  Litt.  (Ky.) 
399. 


PART   II. 
DECLARATIONS  OF  TRUSTS. 


DECLARATIONS  OF  TRUSTS, 

AS  AFFECTED   BY   THE   7TH,    8TH,    AND    9TH   SECTIONS   OF  THE  STATUTE 

OF   FRAUDS. 

SECTION  7.  All  declarations  or  creations  of  trusts  or  confidences,  of 
any  lands,  tenements,  or  hereditaments,  shall  be  manifested  and  proved 
by  some  writing  signed  by  the  party  who  is  by  law  enabled  to  declare 
such  trust,  or  by  his  last  will  in  writing,  or  else  they  shall  be  utterly  void 
and  of  none  effect. 

SECTION  8.  Provided  always,  that  where  any  conveyance  shall  be 
made  of  any  lands  or  tenements,  by  which  a  trust  or  confidence  shall  or 
may  arise  or  result  by  the  implication  or  construction  of  law,  or  be  trans- 
ferred or  extinguished  by  an  act  or  operation  of  law;  then,  and  in  every 
such  case,  such  trust  or  confidence  shall  be  of  the  like  force  and  effect  as 
the  same  would  have  been  if  this  statute  had  not  been  made:  any  thing 
hereinbefore  contained  to  the  contrary  notwithstanding. 

SECTION  9.  All  grants  or  assignments  of  any  trust  or  confidence  shall 
likewise  be  in  writing,  signed  by  the  party  granting  or  assigning  the 
same,  or  by  such  last  will  or  devise,  or  else  shall  likewise  be  utterly  void 
and  of  none  effect. 


CHAPTER  VI. 

TRUSTS   IMPLIED   BY   LAW. 

§  79.  IT  seems  to  be  essential  to  our  obtaining  a  clear 
understanding  of  the  policy  and  spirit  of  this  part  of  the 
Statute  of  Frauds,  which  concerns  the  proof  of  trusts  in  real 
estate,  that  we  first  of  all  compare  it  with  other  sections  in 
which  the  subject  of  title  in  real  estate  is  treated ;  namely, 
the  fourth,  which  forbids  an  action  upon  any  verbal  contract 
for  the  sale  of  lands,  and  the  first  and  third,  which  generally 
forbid  the  creation  or  transfer  in  prcesenti  of  an  estate  in 
lands. 

§  80.  The  States  of  Kentucky,  Virginia,  North  Carolina  * 
and  Texas,2  while  substantially  re-enacting  the  fourth  sec- 
tion, have  altogether  omitted  the  seventh  from  their  legisla- 
tion. In  the  first  of  these  States,  where  an  agreement  was 
made  between  two  parties,  that  one  of  them  should  make  a 
purchase  of  land  for  the  joint  benefit  of  both,  and  one  made 
the  purchase,  and  it  was  then  agreed  that  the  other  should 
advance  half  the  money  and  be  equally  interested  in  the  pur- 
chase, it  was  argued  that,  in  order  to  carry  the  transaction 
into  effect,  it  should  be  considered  as  a  trust,  and  not  as  a 
contract  for  a  sale  of  half  the  land,  because,  in  the  latter 
view,  the  fourth  section  would  prevent  any  remedy  upon  it. 
The  court  said :  "  If  the  trust  is  considered  as  created  by  the 
agreement  of  the  parties,  if  it  does  not  come  within  the  letter, 
that  liberality  of  construction  .  .  .  which  is  alone  calculated 
to  prevent  the  mischiefs  intended  to  be  prevented  by  the 
statute  emphatically  requires  it  should  be  brought  within  the 

1  Pittraan  r.  Pittman,  107  N.  C  159. 
8  Gardner  v.  Ruudell,  70  Texas,  453. 


94  STATUTE   OF  FRAUDS.  [CH.   VI. 

influence  of  the  statute. "  Then,  after  remarking  that  a  trust 
arising  by  implication  of  law  from  existing  facts  and  circum- 
stances is  always  excepted  from  the  operation  of  the  statute, 
the  court  adds :  "  It  is  evident  the  trust  in  the  present  case, 
if  it  can  be  so  denominated,  is  one  created  by  contract,  and 
is  consequently  within  the  statute. " l  The  same  court,  upon 
another  occasion,  where  land  had  been  conveyed  by  one  party 
to  another  in  trust  for  the  grantor,  and  upon  an  agreement 
that  the  grantee  should  reconvey  to  any  one  to  whom  the 
grantor  might  afterwards  sell,  treated  the  transaction  as  a 
contract  for  land,  and,  there  being  no  written  evidence  of  the 
arrangement,  denied  relief  in  equity  on  the  ground  of  the 
statute.2  Here  was  apparently  a  clear  case  of  trust,  to  which 
the  court  applied  the  section  which  in  terms  extends  to  mere 
contracts  for  the  purchase  or  sale  of  land.  In  Virginia,  on 
the  other  hand,  where  the  statute  stands  in  the  same  way,  the 
seventh  section  being  omitted  and  the  fourth  retained,  it  has 
been  said  (in  a  case,  however,  where  the  point  was  not 
directly  presented),  that  the  latter  would  not  apply  to  a 
trust  created  verbally,  which  would  accordingly  be  good  in 
that  State;  and  the  court  based  its  opinion  on  the  simple 
fact  of  the  legislature's  omission  of  the  trust  section  and 
retention  of  the  other,  as  conclusive  of  its  design  to  allow  a 
trust  to  be  proved  without  writing;  adverting  also  to  the  cir- 
cumstance that  in  England  it  was  thought  necessary  to  enact 
the  seventh  section  expressly  providing  for  trusts,  although 
the  fourth  section  of  the  statute  of  Charles  contained  larger 
language  than  the  corresponding  section  of  the  Virginia 
statute ;  namely,  that  the  former  included  contracts  for  "  any 
interest  in  or  concerning  land, "  words  which  were  wanting 
in  the  latter.8 


1  Parker  v.  Bodley,  4  Bibb,  103. 

2  Chiles  v.  Woodson,  2  Bibb,  71. 

8  Bank  of  the  United  States  v.  Carrington,  7  Leigh,  566.    See  Gardner 
t).  Rnndell,  70  Texas,  453;  Reed  v,  Howard,  71  Texas,  204. 


CH.   VI.]  TRUSTS   IMPLIED  BY  LAW.  95 

§  81.  In  Pennsylvania,1  the  three  first  sections  of  the  Eng- 
lish statute,  with  the  omission  from  the  second  of  the  final 
clause  relating  to  the  reservation  of  rent  in  short  leases, 
were  re-enacted  in  1772.  In  1855,  so  much  of  the  fourth  sec- 
tion as  concerns  promises  of  executors,  and  promises  to  answer 
for  the  debt,  etc.,  of  another,  was  substantially  adopted;  and 
in  the  next  year  the  seventh  section  was  added.  Until  then, 
the  courts  of  that  State  made  a  distinction  between  cases 
where  the  grantor  at  the  time  of  the  conveyance  verbally 
declared  the  trust,  and  cases  where  the  grantee  declared  it 
himself,  paying  the  money  which  is  the  price  of  the  land. 
In  the  former,  it  was  held  that  a  confidence"  arose  which  it 
would  be  unconscientious  for  the  grantee  to  violate,  and 
which  would  constitute  that  species  of  express  parol  trust 
which  it  was  the  object  of  the  Pennsylvania  statute  to  sus- 
tain. In  the  latter,  it  was  held  that  the  transaction  amounted 
to  a  mere  contract  to  make  a  conveyance  hereafter,  upon 
which  contract,  on  account  of  the  omission  of  the  fourth  sec- 
tion, the  courts  would  allow  a  remedy  in  damages ;  while,  on 
account  of  the  retention  of  the  first  three  sections,  they  would 
not  generally  decree  a  specific  execution  of  it,  as  that  would 
work  indirectly  a  conveyance  of  land  without  writing.  Or, 
briefly,  it  would  seem  the  rule  in  that  State  was  that  if  the 
purchaser  of  an  estate  verbally  declared  that  he  held  it  in 
trust,  the  statute  as  to  conveyances  applied;  but  if  the 
grantor  declared  that  he  conveyed  it  in  trust,  the  statute  did 
not  apply.2  With  this  reservation  as  to  what  is  to  be  con- 
sidered a  declaration  of  trust,  the  courts  of  Pennsylvania 
uniformly  held,  in  conformity  with  those  of  Virginia,  and 
in  opposition  to  those  of  Kentucky,  that,  in  the  absence  of 
any  re-enactment  of  the  seventh  section  of  the  statute  of 
Charles,  a  verbal  declaration  of  trust  was  valid  and  would  be 

1  The  same  principle  applies  to  Delaware,  which  was  part  of  Pennsyl- 
vania.    Hall  v.  Livingston,  3  Del.  Ch.  348. 

2  A  very  full  and  clear  discussion  of  the  Pennsylvania  cases  on  this 
subject  will  be  found  in  Freeman  v.  Freeman,  2  Pars.  Eq.  Cas.  81. 


96  STATUTE   OF  FRAUDS.  [CH.   VI. 

enforced.1  And,  notwithstanding  that  the  first  section  in 
their  statute  provides  that  no  estate,  etc.,  made  or  created 
without  writing  shall  have  any  greater  force  either  at  law  or 
in  equity  than  an  estate  at  will,  it  was  held  that  its  "  obvious 
design  .  .  .  was,  to  prevent  an  equitable  estate  from  being 
transferred,  and  the  design  of  the  seventh  section  was  to  pre- 
vent a  trust  estate  from  being  created  by  parol. "  2  Without 
assuming  to  harmonize  these  apparently  discordant  views  of 
the  mutual  relation  of  the  several  portions  of  the  statute  in 
question,  it  may  be  remarked  that  it  is  difficult  to  understand 
the  difference  between  creating  an  equitable  estate  by  parol, 
and  reserving  by  parol  an  equitable  estate  in  land  which  is 
granted  absolutely  by  deed;  and  that,  consequently,  the 
reservation  of  a  trust  for  himself  or  for  a  third  party  by  a 
grantor  of  land,  at  the  time  of  the  conveyance,  should  seem 
to  be  properly  covered  by  any  statute  which  contains  (as 
does  that  of  Pennsylvania)  sections  equivalent  to  the  first 
of  the  statute  of  Charles ;  while,  on  the  other  hand,  any  trust 
declared  by  the  grantee  of  land  in  favor  of  a  third  person,  for 
value  received  or  to  be  received  from  him,  is  hardly  distin- 
guishable from  an  agreement  that  the  latter  shall  hold  the 
equitable  title  in  the  land,  and,  as  such,  would  naturally  be 
embraced  by  the  fourth  section  of  the  statute  of  Charles, 
without  regard  to  any  provision  expressly  covering  trusts.3 
We  pass,  however,  to  the  examination  of  the  seventh  section 
as  it  stands. 

1  German  v.  Gabbald,  3  Binn.  302;  Wallace  v.  Duffield,  2  Serg.  &  R. 
521;  Peebles  v.  Reading,  8   Serg.   &  R.  484;  Slaymaker  v.  St.  John,  5 
Watts,  27 ;  Randall  v.  Silverthorn,  4  Pa.  St.  173 ;  and  other  cases  referred 
to  in  the  foregoing.     See  also  Hall  v.  Livingston,  3  Del.  Ch.  365;  Flem- 
ing v.  Donahoe,  5  Del.  Ch.  255;  Foy  v.  Foy,  2  Hayw.  (N.  C.)  296. 

2  Murphy  v.  Hubert,  7  Pa.  St.  420,  per  Gibson,  C.  J.    In  California  it 
is  held  that  a  parol  declaration  of  trust  in  a  mortgage  of  land  is  good,  on 
the  ground  that  by  the  law  of  that  State  a  mortgage  conveys  no  estate  in 
the  land. 

8  Troll  v.  Carter,  15  W.  Va.  567.  This  case  contains  a  valuable  dis- 
cussion of  the  question  how  far  the  function  of  the  seventh  section  is 
not  really  performed  by  the  fourth  section. 


CH.   VI.]  TRUSTS   IMPLIED   BY  LAW.  97 

§  82.  In  regard  to  what  kinds  of  trusts  are  embraced  by 
the  statute,  there  seems  to  have  been  little  question  made, 
the  language  of  the  sections  relating  to  that  subject  being 
simple  and  comprehensive,  and  the  word  "  trusts  "  having 
been  long  since  determined  to  comprehend  uses.1  The  sec- 
tion is,  in  terms,  confined  to  trusts  of  real  estate,  and  it  has 
been  repeatedly  held  that  trusts  of  personalty  are  not  affected 
by  its  operation.2  The  distinction  is  thus  clearly  illustrated 
by  Sharswood,  J. :  "  If  a  deed  of  land  be  made  to  A.  and  B. 
on  a  parol  trust  that  they  will  hold  for  the  benefit  of  grantor, 
or  a  third  person,  —  which  parol  trust  cannot  be  enforced 
against  the  land,  .  .  .  yet  if  they  sell  the  land  and  convert  it 
into  money,  a  parol  declaration  made  by  them,  subsequently 
to  such  sale  and  conversion,  will  be  entirely  effectual."8 
On  the  other  hand  it  is  equally  clear  that  the  statute  embraces 
and  applies  to  chattels  real.4  A  trust  in  a  contract  to  convey 
land  may  be  proved  by  parol : 5  so  also  a  trust  in  a  mortgage.6 
And  a  written  contract  for  the  conveyance  of  land  may  be 
assigned  by  parol.7  In  New  York,  it  was  held  in  the  Supreme 
Court,  that  an  exception  was  to  be  admitted  of  uses  or  trusts 
in  favor  of  religious  societies.  This  may  have  been  in  con- 

1  Holt,  733  ;  Roberts  on  Frauds,  94. 

a  Nab  v.  Nab,  10  Mod.  404 ;  Kimball  u.  Morton,  1  Halst.  (N.  J.)  Ch. 
26;  2  Story  Eq.  Jur.  §  912;  Roberts  on  Frauds,  94;  Williams  v.  Has- 
kins  Est,  29  Atl.  Rep.  (Vt.)  371. 

»  Maffitt  a.  Rynd,  69  Pa.  St.  386;  Hess'  Appeal,  112  Pa.  St.  168. 

4  Skett  v.  Whitmore,  Freem.  Ch.  280 ;  Forster  v.  Hale,  5  Ves.  308 ; 
Riddle  v.  Emerson,  1  Vern.  108.  And  see  Hutchins  v.  Lee,  1  Atk.  447 ; 
Bellasis  v.  Compton,  2  Vern.  294. 

•  Hazewell  v.  Coursen,  36  N.  Y.  Sup'r  Ct.  459. 

«  Bucklin  v.  Bucklin,  1  Abb.  (N.  Y.)  App.  Dec.  242.  In  Dow  v. 
Jewell,  21  N.  H.  488,  where  there  was  a  parol  agreement  that  a  party 
who  had  advanced  part  of  the  purchase-money  for  an  estate  should  have 
the  right  for  life  of  taking  timber  from  the  land,  it  was  held  that  this 
privilege,  while  it  might  be  secured  by  an  express  trust,  could  not  be  by 
one  arising  by  implication  of  law.  See  Thacher  v.  Churchill,  118  Mass. 
108;  Japia  p.  Demartini,  77  Cal.  383. 

7  Currier  v.  Howard,  14  Gray  (Mass.)  oil.  As  to  assignments  of 
existing  estates  in  land,  see  §  45,  ante. 

7 


98  STATUTE   OF  FRAUDS.  [CH.   VI. 

sequence  of,  and  by  inference  from,  the  peculiar  condition  in 
which  the  statutory  law  of  that  State  concerning  the  incor- 
poration of  religious  societies  has  been  left.  Upon  appeal, 
however,  the  ruling  was  reversed,  the  court  holding  that 
there  was  "no  qualification  or  exception,  express  or  implied, 
in  favor  of  public  trusts  or  charitable  uses."1  It  has  been 
decided  in  Massachusetts,  that  the  statute  does  not  apply  to 
secret  trusts  and  confidences  for  the  purpose  of  delaying  or 
defrauding  creditors,  but  that  they  may  always  be  proved  by 
parol,  and,  when  so  proved,  render  wholly  inoperative  the 
formal  transactions  which  may  have  been  adopted  for  such 
purposes  by  the  parties.2  It  could  hardly  be  doubted  that 
such  cases  must  be  excepted  from  the  statute,  even  if  it  were 
required  to  treat  them  as  exceptions ;  but  though  its  language 
is  general,  applying  to  all  cases  where  creations  of  trust 
estates  are  to  be  manifested  or  proved,  it  seems  clearly  the 
meaning  of  the  statute  that  no  such  trust  shall  be  set  up  by 
means  of  verbal  proof,  an  object  just  the  reverse  of  the  verbal 
proof  held  to  be  admissible  in  the  case  referred  to. 

§  83.  The  eighth  section  of  the  English  Statute  of  Frauds, 
however,  expressly  enacts  that  the  statute  shall  not  apply  to 
any  cases  of  trusts  arising  by  act  or  operation  of  law,  upon 
any  conveyance  of  any  lands  or  tenements,  and  it  may  be  con- 
venient to  examine  what  are  the  trusts  here  referred  to,  so  as 
to  arrive  at  a  clear  understanding  of  the  subject-matter  to 
which  the  statute  applies,  before  proceeding  to  inquire  what 
are  the  formalities  which  it  requires  to  be  observed. 

§  84.  In  Lloyd  v.  Spillet,  Lord  Hardwicke  took  occasion 
to  classify  these  trusts  by  act  or  operation  of  law,  or,  as  they 
are  commonly  called,  resulting  trusts,  and  he  divided  them 
into  three  classes :  first,  where  an  estate  is  purchased  in  the 

1  Voorhees  v.   Presbyterian  Church  of  Amsterdam,  8  Barb.  135;  re- 
versed, 17  Barb.  103.     See  Adlington  v.  Cann,  3  Atk.  141;  Muckleston 
v.  Brown,  6  Yes.  52 ;  Stickland  v.  Aldridge,  9  Ves.  516. 

2  Hills  r.   Eliot,  12  Mass.  26.     See  Baldwin  v.  Campfield,  4  Halst. 
(N.  J.)  Ch.  891. 


CH.   VI.1  TRUSTS   IMPLIED   BY   LAW.  99 

« 

name  of  one  person,  but  the  money  or  consideration  is  given 
by  another,  and  a  trust  in  the  estate  results  to  him  who  gave 
the  money  or  consideration ;  second,  where  a  trust  is  declared 
only  as  to  part,  and  nothing  said  as  to  the  rest,  and  what 
remains  undisposed  of  results  to  the  heir-at-law ;  and  third, 
where  transactions  have  been  carried  on  mala  fide.  In  the 
report  of  the  same  case  in  Barnardiston,  the  third  class  is 
stated  to  have  been  explained  more  clearly  by  his  Lordship, 
as  embracing  cases  "  where  there  has  been  a  plain  and  express 
fraud.  Where  there  has  been  a  fraud  in  gaining  a  convey- 
ance from  another,  that  may  be  a  reason  for  making  the 
grantee  in  that  conveyance  to  be  considered  merely  as  a 
trustee. "  1  These  resulting  trusts  are  not  the  creations  of  the 
statute,  and  in  declaring  them  to  be  provable  by  parol  it  has 
only  affirmed  the  common  law.  Thus  in  several  of  our  own 
States  whose  Statutes  of  Frauds  are  silent  upon  the  subject, 
resulting  trusts  have  been  sustained  on  common-law  prin- 
ciples.2 They  do  not  depend  upon  any  agreement  between 
the  parties,  but  are  mere  implications  of  law  from  the  fact 
of  the  purchase  with  another's  money,  or  the  fact  of  the 
declaration  of  trust  as  to  part  of  the  estate  only  and  silence 
as  to  the  remainder,  or  the  fact  of  fraud  in  procuring  the 
legal  title.3  They  arise  upon  actual  conveyance  of  land,  and 


1  Lloyd  v.  Spillet,  2  Atk;  148;  Barnardiston  Ch.  388.  Mr.  Roberts, 
in  quoting  this  case,  objects  to  the  classification  of  Lord  Hardwicke, 
which  he  says  is  confined  to  two  kinds  of  resulting  trusts.  He  appears  to 
have  overlooked  the  third  class  which  is  mentioned  in  the  succeeding 
paragraph  of  his  Lordship's  opinion,  and  which  seems  to  embrace  in 
substance  those  cases  which  he  enumerated  as  omitted  in  the  classifica- 
tion. Roberts  on  Frauds,  p.  97. 

a  Church  v.  Sterling,  16  Conn.  388;  Brothers  v.  Porter,  6  B.  Mon.  (Ky.) 
106;  Murphy  t;.  Hubert,  7  Pa.  St.  420;  Hoxie  v.  Carr,  1  Sumn.  (C.  C.) 
173. 

«  Smith  v.  Burnham,  3  Summ.  (C.  C.)  435;  Williams  v.  Brown,  14  111. 
200 ;  McEldeny  v.  Shipley,  2  Md.  25 ;  Jackraan  v.  Ringland,  4  Watts  & 
S.  (Pa.)  149,  and  cases  there  cited;  Foote  v.  Bryant,  47  N.  Y.  544  ;  Smith 
0.  Smith,  85  HI.  189;  Reynolds  P.  Summer,  126  111.  58;  Gainus  v.  Can- 
non, 42  Ark.  503;  McClure  v.  Doak,  6  Baxter  (Tenn.)  364;  Chainplin 


100  STATUTE    OF   FEAUDS.  [CH.   VI. 

• 

not  upon  an  executory  contract  to  hold  land  in  trust. l  Even 
where  the  contract  to  hold  it  in  trust  is  the  means  of  obtain- 
ing the  legal  title,  a  case  which  falls  under  the  third  class 
mentioned  by  Lord  Hardwicke,  the  trust  is  not  created  by 
the  contract,  but  results  or  is  implied  from  the  fraud ;  as  will 
be  made  clear  when  we  come  to  that  class  in  its  order. 

§  85.  Resulting  trusts  of  the  first  class,  in  which  the  pur- 
chase-money is  paid  by  one  and  the  deed  taken  in  the  name 
of  another,  may  be  pro  tanto,  or  for  a  part  of  the  estate  pro- 
portionate to  such  part  of  the  purchase-money  as  the  cestui 
que  trust  may  have  advanced.  The  case  of  Crop  v.  Norton, 
in  which  Lord  Hardwicke  appears  to  have  expressed  the 
opinion  that  there  could  be  no  resulting  trust  unless  the 
entire  consideration  proceeded  from  the  cestui  que  trust,  was 
afterwards  disregarded  by  Sir  Thomas  Plumer,  Vice  Chancel- 
lor, in  Wray  v.  Steele,  where  it  was  held  that  a  joint  advance 
by  several  upon  a  purchase  in  the  name  of  one  gave  a  resulting 
trust ;  and  it  seems  to  be  not  law  in  England,  as  it  certainly 
is  not  in  this  country,  if  such  was  really  the  point  decided 
by  it.2 

§  86.  But  there  is  a  farther  rule  upon  this  subject,  to  which 
it  seems  that  Crop  v.  Norton  may  be  referred;  and  that  is, 
that  though  there  may  be  a  trust  of  a  part  only  of  the  estate 

v.  Charaplin,  136  111.  309;  Knox  v.  McFarran,  4  Col.  586.  In  New  York, 
Kentucky,  Minnesota,  Indiana,  and  Michigan,  trusts  resulting  from  pur- 
chase with  another's  money  have  been  abolished  by  statute. 

1  Rogers  v.  Murray,  3  Paige  (N.  Y.)  Ch.  390 ;  Page  v.  Page,  8  N.  H. 
187;  Jackson  v.  Morse,  16  Johns.  (N.  Y.)  197.    See  Green  v.  Drummond, 
31  Md.  71. 

2  Crop  v.  Norton,  9  Mod.  233 ;  2  Atk.  74 ;  Wray  v.   Steele,  2  Ves.  & 
B.  388;  Benbow  v.  Townsend,  1  Myl.  &  K.  506;  Dalet;.  Hamilton,  5  Hare, 
369  ;  Ryall  v.  Ryall,  1  Atk.  59;  Buck  v.  Swazey,  35  Me.  41;  Livermore  v. 
Aldrich,  5  Cush.  (Mass.)  434;  Powell  v.  Monson  &  Brimfield  Manuf.  Co.,  3 
Mason  (C.    C.)  362-364;   Botsford   v.  Burr,    2  Johns.  (N.  Y.)  Ch.  405; 
Stark  t».  Cannady,  3  Litt.    (Ky.)   399;   Brothers    v.  Porter,  6  B.  Mon. 
(Ky.)  106;  Ross  v.  Hegeman,  2  Edwards  (N.  Y.)  Ch.  373;   Larkins  v. 
Rhodes,  5  Port.  (Ala.)  195;  Pumphry  v.  Brown,  5  W.  Va.   107;   Dudley 
».  Bachelder,  53  Me.  403;  Reynolds  v.  Morris,  17  Ohio  St.  510;  Beadle 
v.  Seat,  15  So.  Rep.  (Ala.)  243. 


CH.   VI.]  TRUSTS   IMPLIED   BY  LAW. 

by  implication  of  law,  it  must  be  of  an  aliquot  part 
whole  interest  in  the  property.  The  whole  consideration^ 
the  whole  estate,  or  for  the  moiety  or  third  or  some  other 
definite  part  of  the  whole,  must  be  paid;  the  contribution  or 
payment  of  a  sum  of  money  generally  for  the  estate,  when 
such  payment  does  not  constitute  the  whole  consideration, 
does  not  raise  a  trust  by  operation  of  law  for  him  who  pays 
it;  and  the  reason  of  the  distinction  obviously  is,  that  neither 
the  entire  interest  in  the  whole  estate  nor  in  any  given  part 
of  it  could  result  from  such  a  payment  to  the  party  who 
makes  it,  without  injustice  to  the  grantee  by  whom  the  residue 
of  the  consideration  is  contributed.1  Upon  the  same  view,  it 
is  held  that  if  the  proportion  paid  towards  the  consideration 
by  the  party  claiming  the  benefit  of  the  trust  cannot  be  ascer- 
tained, whether  because  its  valuation  is  from  the  nature  of 
the  payment  uncertain,  or  because  the  sum  paid  is  left  uncer- 
tain upon  the  evidence,  no  trust  results  by  operation  of  law.2 
§  87.  It  is  not  necessary  that  the  person  claiming  the  bene- 
fit of  the  purchase  should  make  actual  payment  of  the  price 
in  money.  If  it  be  upon  his  credit  as  by  his  giving  his  note 
for  the  price,8  or  by  his  being  credited  for  the  price  by  the 
vendor,4  it  is  sufficient.  So  also  if  the  compromise  of  a  claim 

1  White  v.  Carpenter,  2  Paige  (N.  Y.)  Ch.  217;  Sayre  v.  Townsend, 
15  Wend.  (N.   Y.)  647;  Perry  v.  McHenry,   13  111.  227;  McGowan  v. 
McGowan,  14  Gray  (Mass.)  119 ;  Buck  v.  Warren,  14  Gray  (Mass.)  122; 
Gee  v.   Gee,  2   Sneed  (Tenn.)  395;  Wheeler  v.  Kirtland,  23  N.  J.   Eq. 
22;   Firestone    v.   Firestone,  49  Ala.  128;    Olcott  v.  Bynum,  17  Wall. 
(U.S.)  44;  Perkins  v.  Cheairs,  2  Baxt.  (Tenn.)  194;  Bailey  v.  Hem- 
en  way,  147  Mass.  326.     See  Green  v.  Drummond,  31  Md.  71.     Hall  v. 
Young,  37  N.  H.  134,  and  Fleming  ».  McHale,  47  111.  282,  seem  to  be 
inconsistent  with  this  doctrine. 

2  Sayre  v.  Townsend,  15  Wend.  (N.  Y.)  647 ;  Baker  ».  Vining,  30 
Me.  121;  Cutler  v.  Tuttle,  19  N.  J.  Eq.  549;  Olcott  v.  Bynum,  17  Wall. 
(U.  S.)  44.     See,  however,  Jenkins  v.  Eldredge,  post,  §  111,  note.     In  so 
far  as  this  case  may  be  supposed  to  conflict  with  the  rule  stated  in  the 
text,  it  is  doubted  in  McGowan  v.  McGowan,  supra. 

8  Buck  ».  Pike,  11  Me.  9 ;  Brothers  ».  Porter,  5  B.  Mon.  (Ky.)  106. 
See  Seiler  v.  Mohn,  37  W.  Va.  507. 
4  Buck  v.  Swazey,  35  Me.  41. 


102  STATUTE   OF  FKAUDS.  [CH.   VI. 

of  his  against  the  vendor  be  the  consideration,1  or  the  allow- 
ance to  the  vendor  of  an  old  debt.2  Where  it  is  his  credit 
that  is  used  in  the  transaction  originally,  it  makes  no  differ- 
ence that  the  money  to  meet  the  obligation  is  subsequently 
furnished  him  by  another,3  unless  there  was  a  previous  agree- 
ment to  that  effect,  in  which  latter  case  it  is  clear  that  the 
credit  at  risk  was  really  that  of  the  party  who  had  engaged 
to  furnish  the  money.4 

§  88.  It  is  clear  from  several  cases  that,  if  part  of  the  con- 
sideration of  the  purchase  be  the  waiver  by  a  third  person  of 
a  claim  or  right  of  indefinite  value,  that  circumstance  pre- 
vents the  party  who  pays  all  the  money  part  of  the  considera- 
tion from  claiming  a  resulting  trust  in  the  whole  purchase ;  5 
hence  it  would  seem  reasonable  that  such  a  waiver,  being  in 
the  nature  of  a  contribution  towards  the  purchase,  should 
entitle  the  party  making  it  to  a  resulting  trust  pro  tanto,  if 
its  value  can  be  ascertained,  as  well  as  an  actual  money  con- 
tribution to  the  same  amount;  and  such  an  opinion  was 
expressed  by  Mr.  Justice  Story  in  the  case  of  Jenkins  v. 
Eldredge.6 

§  89.  A  resulting  trust  attaches  only  when  the  payment  is 
made  at  the  time  of  the  purchase,  and  a  subsequent  advance 
will  not  have  that  effect,7  even  though  it  be  made  for  one 

1  Sweet  v.  Jacocks,  6  Paige  (N.  Y.)  Ch.  355. 

2  Dwinel  v.  Veazie,  36  Me.  509;  Depeyster  v.  Gould,  2  Green  (N.  J.) 
Ch.  474;  Taliaferro  v.  Taliaferro,  6  Ala.  404.     In  this  and  the  next  pre- 
ceding class  of  cases,  the  fact  of  the  appropriation  of  the  debt  or  claim  to 
the  purchase  is  always  provable  by  parol,  and  it  would  seem  that  as  it 
must  rest  in  the  mere  agreement  of  the  parties  to  that  effect,  there  is 
ample  opportunity  afforded  for  a  fraudulent  pretence  by  the  cestui  que 
trust.     But  the  rule  admitting  such  proof  is  clearly  settled. 

8  Buck  v.  Swazey,  35  Me.  41. 
4  Forsyth  r.  Clark,  3  Wend.  (X.  Y.)  637. 

6  Crop  v.  Norton,  9  Mod.  233;  Sayre  v.  Townsend,  15  Wend.  (N.  Y.) 
647. 

6  Jenkins  v.  Eldredge,  3  Story  (C.  C.)  181,  286.     See  this  case  ab- 
stracted, post,  §  111,  note. 

7  Buck  v.  Swazey,  35  Me.  41;  Hollida  v.  Shoop,  4  Md.  465 ;  Alexander 
v.  Tarns,  13  111.  221 ;  Conner  v.  Lewis,  16  Me.  268 ;  Foster  v.  Trustees 


CH.   VI.]  TRUSTS  IMPLIED   BY   LAW.  103 

who  was  surety  for  the  original  purchaser,  and  is  finally 
compelled  to  pay.1 

§  90.  It  is  obvious  that  the  purchase-money  must,  at  the 
time  of  payment,  be  the  property  of  the  party  paying  it  and 
setting  up  the  trust;2  and  the  fact  that  the  purchase  was 
made  with  borrowed  money  will  not  establish  a  resulting 
trust  in  favor  of  the  lender.3  If,  however,  the  party  who 
takes  the  deed  lend  or  advance  the  price  to  the  party  who 
claims  the  benefit  of  it,  before  or  at  the  time  of  the  purchase, 
so  that  the  money  or  property  paid  actually  belongs  to  the 
latter,  a  trust  results.4  But  it  is  otherwise  where  the  party 
taking  the  deed  pays  his  own  money  for  it,  with  an  under- 
standing or  agreement  that  it  may  be  afterwards  repaid  and 
the  land  redeemed  by  him  who  sets  up  the  trust5  If  a 
trustee  or  executor  purchase  estates  with  the  trust  money, 
and  take  a  conveyance  to  himself  without  the  trust  appearing 


of  Athenaeum,  3  Ala.  302 ;  Jackson  v.  Moore,  6  Cowen  (N.  Y.)  706 ; 
Graves  v.  Dugan,  6  Dana  (Ky.)  331 ;  Botsford  v.  Burr,  2  Johns.  (N.  Y.) 
Ch.  405 ;  Rogers  ».  Murray,  3  Paige  (N.  Y.)  Ch.  390.  But  see  Harder 
v.  Harder,  2  Sandf.  (N.  Y.)  Ch.  19;  Wells  v.  Stratton,  1  Tenn.  Ch.  328; 
Ducie  r.  Ford,  138  U.  S.  587;  Knox  v.  McFarran,  4  Col.  586;  Williams 
v.  County  of  San  Saba,  59  Texas,  442. 

1  Buck  v.  Pike,  11  Me.  9 ;  Pinnock  v.  Clough,  16  Vt  500. 

*  Jackson  v.  Bateraan,  2  Wend.  (N.  Y.)  570;  Getman  v.  Getman,  1 
Barb.  (N.  Y.)  Ch.  499;  Smith  v.  Burnham,  3  Sumn.  (C.  C.)  435 ;  Hertle 
r.  McDonald,  2  Md.  Ch.  128  ;  Gibson  r.  Foote,  40  Miss.  788  ;  Walter  v. 
Klock,  55  111.  362;  Truski  v.  Streseveski,  60  Mich.  34;  FSckett  v.  Durham, 
100  Mass.  419. 

8  Smith  v.  Garth,  32  Ala.  368;  Gibson  v.  Foote,  40  Miss.  788  ;  Jackson 
r.  Stevens,  108  Mass.  94;  Harvey  v.  Pennypacker,  4  Del.  Ch.  445. 

4  Reeve  v.  Strawn,  14  111.  94;  Bartlett  v.  Pickersgill,  1  Eden,  515; 
1  Cox,  15;  4  East,  577,  note;  Lathrop  v.  Hoyt,  7  Barb.  (N.  Y.)  59;  Mc- 
Donough  v.  O'Niel,  113  Mass.  92;  Wallace  v.  Carpenter,  85  111.  590; 
Smith  v.  Smith,  85  111.  189;  Keller  r.  Kunkel,  46  Md.  565;  Walton  v. 
Karnes,  67  Cal  255;  Ward  v.  Matthews,  73  Cal.  13. 

6  Getman  v.  Getman,  1  Barb.  (N.  Y.)  Ch.  499;  Blodgett  t.  Hildreth, 
103  Mass.  484;  Fischli  v.  Dumaresly,  3  A.  K.  Marsh.  (Ky.)  23;  Jackman 
v.  Ringland,  4  Watts  &  S.  (Pa.)  149;  Kellum  ».  Smith,  33  Pa.  St.  164; 
Kendall  v.  Mann,  11  Allen  (Mass.)  15;  Morton  v.  Nelson,  145  111.  586; 
Parsons  v.  Phelan,  134  Mass.  109;  Allen  v.  Richard,  83  Mo.  55. 


104  STATUTE  OF  FRAUDS.  [CH.  VL 

on  the  deed,  the  estate  will  be  liable  to  the  trusts,  if  the 
application  of  the  trust-money  to  the  purchase  be  clearly 
proved.1  And  so  if  one  partner  make  a  purchase  of  land  to 
himself,  paying  for  it  with  the  partnership  funds,  a  trust 
results  to  his  copartners,2  though  it  is  otherwise  if  the  co-part- 
nership be  not  at  the  time  actually  existing,  but  only  resting 
in  executory  agreement.8  "Where  land  is  bought  with  part- 
nership funds,  but  the  title  is  taken  in  the  name  of  the  part- 
ners as  individuals,  there  is  a  resulting  trust  to  the  firm.4 

§  91.  The  fact  of  payment  or  of  the  ownership  of  the 
money  may  always  be  shown  by  parol  evidence,5  but  such 
evidence  must  be  clear  and  strong,6  particularly  after  con- 
siderable lapse  of  time,7  or  when  the  trust  is  not  claimed 
till  after  the  death  of  the  alleged  trustee.8  The  testimony 
of  the  trustee  is  competent  for  this  purpose ; 9  but  mere  evi- 

1  Lane  v.  Dighton,  Arab.  409 ;  Ryall  v.  Ryall,  1  Atk.  59 ;  Wilson  v. 
Foreman,  2  Dickens,  593;  Kisler  v.  Kisler,  2  Watts  (Pa.)  323;  Sugden, 
Vend.  &  P.  919,  and  cases  cited. 

2  Phillips  v.   Crammond,  2  Wash.  (C.  C.)  441;  Buck  v.   Swazey,  35 
Me.  41.     And  see  Fairchild  v.  Fairchild,  5  Hun.  (N.  Y.)  407,  although 
resulting  trusts  are  abolished  by  statute  in  that  State. 

3  Dale  v.  Hamilton,  5  Hare,  369;  Smith  v.  Burnham,  3  Sumn.  (C.  C.) 
435. 

4  Paige  ».  Paige,  71  Iowa,  318. 

6  It  is  needless  to  cite  the  numerous  cases  to  this  effect.  They  are 
referred  to  in  other  parts  of  this  section,  and  are  collected  at  length  in  the 
American  editor's  note  to  Sugden  on  Vendors  and  Purchasers,  909. 

6  Sewell  v.  Baxter,  2  Md.  Ch.  447 ;  Baker  v.  Vining,  30  Me.   121 ; 
Hollida  v.  Shoop,  4  Md.  465;  Malin  v.  Malin,  1  Wend.  (N.  Y.)  625; 
Kendall  v.  Mann,  11  Allen   (Mass.)  15;  Cutler  v.  Tuttle,  19  N.  J.  Eq. 
549;  Gascoigne  v.   Thwing,   1  Vern.  366;  Finch  v.  Finch,  15  Ves.  43. 
Entries  in  books  adduced  to  prove  payment  by  a  third  person  must  be 
unequivocal  to  that  effect.     Dorsey  v.  Clarke,  4  Harr.  &  J.  (Md.)   551. 
See  Kennedy  v.  Kennedy,  57  Mo.  73 ;   Whitsett  v.  Kershow,  4  Col.  419 ; 
Johnston  v.  Johnston,  138  111.  385. 

7  Carey  v.  Callan,  6  B.  Mon.  (Ky.)  44;  Cutler  v.  Tuttle,  19  N.  J.  Eq. 
549. 

8  Enos  v.  Hunter,  4  Gilm.  (HI.)  211;  Midmer  v.  Midmer,  26  N.  J.  Eq. 
299;  Pillow  v.  Thomas,  1  Baxt.  (Tenn.)  120. 

9  Ambrose  v.  Ambrose,  1  P.  Wins.  321;  Ryall  v.  Ryall,  1  Atk.  59; 
Malin  v.  Malin,  1  Wend.  (N.  Y.)  625.     See  Lord  Gray's  case,  Freem. 
Ch.  6. 


CH.   VI.]  TRUSTS   IMPLIED   BY  LAW.  105 

dence,  given  during  his  lifetime,  of  his  declarations  to  that 
effect  seems  to  be  inadmissible,  as  not  being  the  best  exist- 
ing evidence. *  So  if  it  appears  upon  the  face  of  the  convey- 
ance, by  recital  or  otherwise,  that  the  purchase  was  made 
with  the  money  of  a  third  person,  that  is  clearly  sufficient 
to  create  a  trust  in  his  favor.2  Evidence  is  also  admissible 
of  the  mean  circumstances  of  the  pretended  owner  of  the 
estate,  tending  to  show  it  impossible  that  he  should  have 
been  the  purchaser,3  although  that  fact  alone  would  not 
probably  be  sufficient  to  establish  the  trust.4 

§  92.  As  parol  evidence  is  admissible  to  show  facts  raising 
a  presumption  of  a  resulting  trust,  so  it  is  also  admissible  to 
rebut  that  presumption;6  and  for  that  purpose,  where  the 
plaintiff  set  up  a  resulting  trust,  verbal  evidence  of  his  ad- 
missions that  the  whole  land  was  the  defendant's,  and  that 
he  had  nothing  to  do  with  it,  has  been  held  competent.6  And 
so  proof  of  an  express  trust,  though  by  parol  only,  will  cut  off 
a  resulting  trust ;  the  latter  being  left  by  the  statute  as  at 
common  law.7  In  like  manner,  a  previous  agreement  that  the 
nominal  purchaser  should  also  have  the  whole  legal  and  equi- 
table estate  will,  when  proved,  be  an  answer  to  the  presump- 
tion of  a  resulting  trust.8  And  this  presumption  may  be 
overcome  by  others  that  arise  from  the  natural  relations,  as 


1  Roberts  on  Frauds,  100. 

2  Kirk  v.  Webb,  Free.  Ch.  81 ;  Deg  v.  Deg,  2  P.  Wms.  412 ;  Young  v. 
Peachy,  2  Atk.  254. 

8  Willis  v.  Willis,  2  Atk.  71 ;  Ryall  ».  Ryall,  1  Atk.  59  ;  Finch  v.  Finch, 
15  Ves.  43;  Strimpfler  v.  Roberts,  18  Pa.  St.  283. 

4  Faringer  v.  Ramsay,  2  Md.  365. 

8  Lake  v.  Lake,  Amb.  126;  Baker  v.  Vining,  30  Me.  121;  Fosters. 
Trustees  of  Athenaeum,  3  Ala.  302 ;  Welton  v.  Devine,  20  Barb.  (N.  Y.) 
9 ;  Livermore  t>.  Aldrich,  5  Cush.  (Mass.)  431 ;  Baldwin  v.  Campfield,  4 
Halst.  (N.  J.)  Ch.  891 ;  Wiser  v.  Allen,  92  Pa.  St.  317. 

«  Botsford  v.  Burr,  2  Johns.  (N.  Y.)  Ch.  405. 

7  Sugden,  Vend.  &  P.  Oil. 

8  St.  John  v.  Benedict,  6  Johns.  (N.  Y.)  Ch.  Ill ;  Elliott  v.  Arm- 
strong, 2  Blackf.  (Tnd.)  198;  Henderson  v.  Iloke,  1  Dev.  &  B.  (X.  C.) 
Eq.  119. 


106  STATUTE   OF  FKAUDS.  [CH.   VI. 

e.  g.  presumption  of  advancement  for  a  child,  or  provision 
for  a  wife.1 

§  93.  It  was  formerly  doubted  whether  parol  evidence  was 
admissible  to  show  payment  by  a  third  person,  in  contradic- 
tion of  the  face  of  the  deed  expressing  payment  to  have  been 
by  the  nominal  grantee,2  but  it  is  now  clearly  settled  in  the 
affirmative.3  Indeed,  as  has  been  said  by  the  Supreme  Court 
of  New  Hampshire,  such  evidence  does  not  go  to  contradict 
the  statement  in  the  deed  that  the  grantee  paid  the  money, 
but  to  show  the  farther  fact  that  the  money  did  not  belong 
to  him,  but  to  the  person  claiming  the  trust.4  Whether  parol 
evidence  to  show  the  ownership  of  the  purchase-money  is 
admissible  in  opposition  to  the  answer  of  the  trustee  denying 
the  trust,  is  doubted  by  Sir  Edward  Sugden,  upon  the  author- 
ity of  certain  early  English  cases ; 5  but  it  is  now  settled,  at 
least  in  this  country,  that  it  is  admissible.6  It  has  been 
maintained  by  eminent  English  writers  that  parol  evidence, 
even  of  the  confessions  of  the  nominal  purchaser,  cannot  be 
received  to  set  up  a  resulting  trust  after  his  death ; 7  but 
this  position  seems  to  be  not  now  admitted  in  England,  and 
in  our  courts  may  be  fairly  said  not  to  prevail.8 

1  See  Edgerly  v.  Edgerly,  112  Mass.  175. 

2  Kirk  v.  Webb,  Free.  Ch.  84;   Newton  v.  Preston,  Free.  Ch.  103; 
Skett  v.  Whitmore,  Freem.  Ch.  280. 

8  Livermore  v.  Aldrich,  5  Gush.  (Mass.)  435;  Page  v.  Page,  8  N.  H. 
187 ;  Scoby  v.  Blanchard,  4  N.  H.  170 ;  Powell  v.  Monson  &  Brimfield 
Manuf.  Co.,  3  Mason  (C.  C.)  347;  Gardner  Bank  v.  Wheaton,  8  Greenl. 
(Me.)  373;  Pritchard  v.  Brown,  4  N.  H.  397;  Botsford  v.  Burr,  2  Johns. 
(N.  Y.)  Ch.  405;  Boyd  v.  McLean,  1  Johns.  (N.  Y.)  Ch.  582;  Blodgett 
v.  Hildreth,  103  Mass.  484. 

4  Pritchard  v.  Brown,  4  N.  H.  397;  Scoby  v.  Blanchard,  3  N.  H.  170. 

5  Sugden,  Vend.  &  P.  909,  and  cases  there  cited. 

6  Boyd  v.  McLean,  1  Johns.   (N.  Y.)  Ch.  582 ;  Dorsey  ».  Clarke,  4 
Harr.  &  J.  (Md.)  551 ;  Faringer  v.  Ramsay,  2  Md.  365;  Baker  v.  Vining, 
30  Me.  121;  Elliott  v.  Armstrong,  2  Blackf.  (Tnd.)  198;  Jenison  v.  Graves, 
2  Blackf.  (Ind.)  440;  Blair  ».  Bass,  4  Blackf.  (Ind.)  539;  Page  v.  Page, 
8  N.  H.  187;  Larkins  v.  Rhodes,  5  Port.  (Ala.)  195. 

7  1  Sanders  on  Uses,  123;  Roberts  on  Frauds,  99. 

8  Sugden,  Vend.  &  P.  910,  and  cases  there  cited;  Williams  v.  Hol- 
lingsworth,  1   Strobh.   (S.  C.)  Eq.  103;  Pinney  v.  Fellows,  15  Vt.  525; 


CH.   VI.]  TRUSTS   IMPLIED   BY   LAW.  107 

§  94.  A  few  general  observations  should  be  made  upon 
those  implied  trusts  which  arise  in  cases  of  fraud  before 
proceeding  to  the  subject  of  the  manifestation  or  proof  of 
express  trusts  required  by  the  statute.  The  fraud  which 
suffices  to  lay  a  foundation  for  such  a  trust  is  not  simply  that 
fraud  which  is  involved  in  every  deliberate  breach  of  con- 
tract.1 The  true  rule  seems  to  be  that  there  must  have  been 
an  original  misrepresentation  by  means  of  which  the  legal 
title  was  obtained ;  an  original  intention  to  circumvent,  and 
get  a  better  bargain,  by  the  confidence  reposed.2  Thus,  as 

Bank  of  the  United  States  v.  Carrington,  7  Leigh  (Va.)  566;  Enos  v. 
Hunter,  4  Gilm.  (Ill )  211.     See  Barnes  v.  Taylor,  27  N.  J.  Eq.  259. 

1  Robertson  v.   Robertson,  9   Watts  (Pa.)  32 ;  Jackman  v.  Ringland, 
4  Watts  &  S.  (Pa.)  149 ;  Whetham  v.  Clyde,  Pa.  Leg.  Gaz.  53 ;  Harper 
v.  Harper,  5  Bush  (Ky.)  176;  Walter  v.  Klock,   55  111.  362;  Durant  v. 
Davis,  10  Tenn.  522;  Ryan  v.  Dox,  25  Barb.  (N.  Y.)  440.     Upon  appeal 
(vide  same  case,  34  N.  Y.  307,  reversing  the  former  decision),  the  court 
seemed  inclined  to  hold  that  the  breach  of  the  agreement  was  fraud,  and 
although  they  did  not  so  decide,  the  case  is  cited  as  an  authority  for 
that  position,  in  Sandford  v.  Norris,  1  Tr.  App.   (N.  Y.)  35 ;  and  see 
Soggins  v.  Heard,  31  Miss.  426.     See  also  Wolford  v.  Herrington,  74 
Pa.  St.  311,  where  the  distinction  is  pointed  out  between  the  breach  of 
such  an  agreement,  and  that  of  an  agreement  between  the  parties  to  exe- 
cute a  writing,  upon  the  faith  of  which  promise  reliance  has  been  placed, 
so  that  a  refusal  to  perform  would  be  a  fraud.     But  see  Glass  v.  Hulbert, 
102  Mass.  30;  §  94  a,  post.     In  Montacute  v.  Maxwell,  1  P.  Wms.  620, 
Lord  Chancellor  Parker  says :  "  In  cases  of  fraud,  equity  should  relieve, 
even  against  the  words  of  the  statute:  .  .  .  but  where  there  is  no  fraud, 
only  relying  upon  the  honour,  word,  or  promise  of  the  defendant,  the  stat- 
ute making  those  promises  void,  equity  will  not  interfere."     In  Jenkins 
v.  Eldredge,  3  Story,  292,  post,  §  111,  note,  Mr.  Justice  Story  dissents  from 
the  doctrine,  even  as  applied  to  contracts  in  consideration  of  marriage, 
and  says:  "  I  doubt  the  whole  foundation  of  the  doctrine,  as  not  distin- 
guishable from  other  cases  which  courts  of  equity  are  accustomed  to 
extract  from  the  grasp  of  the  Statute  of  Frauds."    But  certainly  it  would 
seem  that  if  there  be   not   some  distinction   such  as  was  suggested  in 
Montacute  v.  Maxwell,  there  is  an  end  of  the  Statute  of  Frauds  so  far  as 
courts  of  equity  are  concerned.    McClain  v.  McClain,  57  Iowa,  167;  Scott 
r.  Harris,  113  111.447;  Biggins  v.  Biggins,   133  111.  211;    Randall   t». 
Constans,  33  Minn.  329 ;  Tatge  v.  Tatge,  34  Minn.  272 ;  Von  Trotha  v. 
Bamberger,  15  Col.  1 ;  Brock  v.  Brock,  90  Ala.  86. 

2  McCulloch  v.  Cowher,  5  Watts  &  S.  (Pa.)  427;  Church  r.  Ruland,  64 


108  STATUTE   OF  FRAUDS.  [CH.   VI. 

has  been  held  in  many  cases,  if  a  man  procure  a  certain 
devise  or  conveyance  to  be  made  to  himself,  by  representing 
to  the  testator  or  grantor  that  he  will  see  it  applied  to  the 
trust  purposes  contemplated  by  the  latter,  he  will  be  held  a 
trustee  for  those  purposes.1  In  such  cases,  it  seems  to  be 
requisite  that  there  should  appear  to  have  been  an  agency, 
active  or  passive,  on  the  part  of  the  devisee  or  grantee  in  pro- 
curing the  devise ;  it  must  appear  that  the  testator  or  grantor 
was  drawn  in  to  make  the  devise  or  grant  by  the  fraudulent 
representation  or  engagement  of  the  devisee  or  grantee.2  In 
all  such  cases  of  resulting  trusts  arising  ex  maleficio,  equity, 
to  use  the  forcible  expression  of  Chief  Justice  Gibson,  turns 
the  fraudulent  procurer  of  the  legal  title  into  a  trustee,  to 
get  at  him.3 

§  94  a.  The  breach  of  an  agreement  to  make  a  written 
declaration  of  the  proposed  trust  is  not  enough  to  create  a 
trust  ex  maleficio,4  although  this,  in  connection  with  the 

Pa.  St.  432.  But  see  Jenkins  v.  Eldredge,  3  Story  (C.  C.)  181 ;  post, 
§  111,  note. 

1  Harris  v.  Horwell,  Gilb.  Eq.  11;  Chamberlaine  v.  Chamberlaine, 
Freem.  Ch.  34;  Devenish  v.  Baines,  Prec.  Ch.  3;  Oldham  v.  Litchford,  2 
Vern.  506 ;  Thynn  v.  Thynn,  1  Vern.  296 ;  Hoge  v.  Hoge,  1  Watts  (Pa.) 
163.  But  see  Barrow  v.  Greenough,  3  Ves.  Jr.  152;  Hargrave  v.  King, 
5  Ired.  (N.  C.)  Eq.  430  ;  Cloninger  v.  Summit,  2  Jones  (N.  C.)  Eq.  513  ; 
Podmore  v.  Gunning,  7  Sim.  644;  Henschel  v.  Mamero,  120  111.  620;  Troll 
v.  Carter,  15  W.  Va.  567. 

a  Whitton  v.  Russell,  1  Atk.  448;  Miller  v.  Pearce,  6  Watts  &  S.  (Pa.) 
97;  Lautry  v.  Lantry,  51  111.  458;  Haigh  v.  Kaye,  L.  R.  7  Ch.  469;  Booth 
v.  Turle,  L.  R.  16  Eq.  182;  McClain  v.  McClain,  57  Iowa,  167;  Fishbeck 
v.  Gross,  112  111.  208. 

8  Hoge  r.  Hoge,  1  Watts  (Pa.)  214.  A  cestui  que  trust,  in  such  a  case 
of  trust,  ex  malefcio,  defended  successfully,  upon  this  ground,  an  action 
of  trespass  brought  by  the  trustee  against  him,  in  Carpenter  v.  Ottley,  2 
Lans.  (N.  Y.)  451. 

4  Glass  v.  Hulbert,  102  Mass.  38,  per  Wells,  J. ;  Marshman  v.  Conklin, 
21  N.  J.  Eq.  546.  Compare  Hayes  v.  Burkam,  51  Ind.  130,  on  the  sub- 
ject of  a  promise  to  give  a  written  guaranty.  But  see  Wolford  v.  Her- 
rington,  74  Pa.  St.  311;  qualified  subsequently,  86  Pa.  St.  39,  on  a 
new  trial. 


\ 


CH.    VI.]  TRUSTS   IMPLIED   BY  LAW.  109 

other  circumstances  in  the  case,  may  be  sufficient  to  give 
equitable  jurisdiction.1 

§  95.  Upon  similar  principles,  if  one  falsely  represent  him- 
self to  be  purchasing  for  another,  and  by  that  means  prevent 
competition  in  bidding,  or  otherwise  get  the  land  at  a  cheaper 
rate,  he  shall  be  held  a  trustee  for  him  in  whose  behalf  he 
pretended  to  act,  or,  at  least,  the  purchase  be  set  aside  on 
account  of  the  fraud.2  But  in  no  case  will  the  grantee  be 
deemed  a  trustee,  if  he  used  no  fraud  or  deceit  in  getting  his 
title,  although  he  verbally  promised  to  hold  the  land  for 
another.3  If,  on  the  other  hand,  the  grant  was  made  on  the 
faith  of  a  promise,  and  induced  thereby,  the  breach  of  the 
promise  is  fraud,  and  as  such  has  been  made  ground  of  equi- 
table relief,4  and  this  doctrine  has  been  extended  to  cover 
those  cases  where  the  promise  which  induced  the  conveyance 
was  to  convey  to  a  third  person,  who  has  been  held  to  be 
thereby  enabled  to  compel  a  conveyance  to  himself  from  the 
grantee.5 

§  96.  Finally,  the  principles  above  laid  down  apply  in 
general  to  all  conveyances  to  persons  standing  in  fiduciary 

1  Glass  v.  Hulbert,  102  Mass.  38.     See  Jenkins  v.  Eldredge,  3   Story 
(C.  C.)  181;  Dean  v.  Dean,  6  Conn.  285;  Bartlett  v.  Pickersgill,  1  Eden, 
515;  1  Cox  15;  4  East,  577,  note;  Von  Trotha  v.  Baraberger,  15  Col.  1. 

2  McCulloch  v.  Cowher,  5  Watts  &  S.  (Pa.)  427;  Kisler  v.  Kisler,  2 
Watts  (Pa.)  323;   Schmidt  v.  Gatewood,  2  Rich.  (S.  C.)  Eq.  162;  Boyn- 
ton  v.  Housler,  73  Pa.  St.  453.     Contra,  Rogers  v.  Simmons,  55  111.  76. 

8  Leman  v.  Whitley,  4  Russ.  423;  Whiting  v.  Gould,  2  Wise.  552; 
Barnet  v.  Dougherty,  32  Pa.  St.  371;  Chambliss  v.  Smith,  30  Ala.  366; 
Campbell  v.  Campbell,  2  Jones  (N.  C.)  Eq.  364 ;  Pattison  v.  Horn,  1 
Grant  (Pa.)  301;  Hogg  v.  Wilkins,  1  Grant  (Pa.)  67;  Walker  v.  Hill,  21 
N.  J.  Ch.  191;  Johns  ».  Xorris,  22  N.  J.  Ch.  102;  Loomis  v.  Loomis,  60 
Barb.  (N.  Y.)  22 ;  Kistler's  Appeal,  73  Pa.  St.  393 ;  Payne  v.  Patterson, 
77  Pa.  St.  134;  Kimball  v.  Smith,  117  Pa.  St.  183;  Salsbury  v.  Black, 
119  Pa.  St.  200. 

4  Haigh  v.  Kaye,  L.  R.  7  Ch.  469 ,  Brison  v.  Brison,  75  Cal.  525.  See 
post,  §§  439,  et  seq. 

6  Carr  v.  Carr,  52  N.  Y.  251;  Cipperley  v.  Cipperley,  4  Thomp.  &  C. 
(N.  Y.)  342 ;  Faust  v.  Haas,  73  Pa.  St.  295 ;  Boruff  v.  Hudson,  37  N.  E. 
Rep.  (Tnd.)  786. 


HO  STATUTE   OF   FRAUDS.  [CH.   VI. 

relations  to  others,  and  who  avail  themselves  of  their  posi- 
tion to  get  the  legal  title  to  themselves.  In  all  such  cases, 
embracing  those  of  agents,  guardians,  or  others  who  are 
bound  to  act  for  the  use  of  their  principals  or  wards  or  other 
beneficiaries,  the  parties  purchasing  for  their  own  use  are 
made  trustees  for  those  in  whose  name  they  should  have  pur- 
chased.1 It  has  been  stated  to  be  the  law  that,  where  one 
man  employs  another  by  parol  as  agent  to  buy  an  estate  for 
him,  and  the  latter  buys  it  in  his  own  name,  with  his  own 
money,  and  denies  the  agency,  the  one  who  employed  him 
cannot,  by  a  suit  in  equity,  compel  a  conveyance  of  the 
estate ;  for  that,  it  is  said,  would  be  decidedly  in  the  teeth  of 
the  Statute  of  Frauds.2  The  case  put  is  not  that  of  an  agree- 
ment that  one  party  shall  take  title  in  his  own  name,  and  pay 
his  own  money,  and  afterward  convey  to  the  other,  for  that  is 
evidently  a  contract  to  transfer  an  interest  in  land  which  one 
of  them  is  afterwards  to  obtain.3  But  the  agreement  between 
principal  and  agent  is  quite  different.  A  man  wishes  to  buy 
the  land,  and  asks  another  to  represent  him  at  the  sale.  The 

1  Lees  v.  Nuttall,  1  Russ.  &  M.  53 ;  Carter  ».  Palmer,  11  Bligh,  X.  R. 
397;  Dale  v.  Hamilton,  5  Hare,  369;  Sweet  v.  Jacocks,  6  Paige  (N.  Y.) 
355;  Jenkins  v.  Eldredge,  3  Story,  181;  Jackson  v.  Sternbergh,  1  Johns. 
(X.  Y.)  Cas.  153;  Perry  v.  McHenry,  13  111.  227;  Traphagen  v.  Burt,  67 
N.  Y.  30;  Brannin   n.  Brannin,   18  N.  J.  Eq.  212.     See   Fischli  v.  Du- 
maresly,  3  A.  K.  Marsh.  (Ky.)  23 ;  Wright  ».  Gay,  101  111.  233 ;  Reese  v. 
Wallace,  113  111.  589  ;  Vallette  v.  Tedens,  122  111.  607;  Gurhn  v.  Richard- 
son, 128  111.  178;  Roby  v.  Colehour,  135  111.  300  ;  Wood  v.  Rabe,  96  X.  Y. 
414;  McMurryi*.  Mobley,  39  Ark.  309;  Rose  v.  Hayden,  35  Kansas,  106; 
Larmon  v.  Knight,  140  111.  232.     See  Hamilton  v.  Buchanan,  112  N.  C. 
463.     But  see  Bland  v.  Talley,  50  Ark.  71. 

2  Story  Eq.  Jur.  §  1201  a.     See  Perry  Trusts,  §  135;  Burden  v.  Sheri- 
dan, 36  Iowa,  125;  Miazza  c.  Yerger,  53  Miss.  135;  Xestal  v.  Schmid,  29 
N.  J.  Eq.  458.     See  Watson  v.  Erb,  33  Ohio  St.  35;   Bauman  v.  Holz- 
hausen,  26  Hun  (N.  Y.)  505;  James  v.  Smith,  L.  R.  1  Ch.  D.  1891,  384. 

8  See  Pinnock  v.  Clough,  16  Vt.  501 ;  Jackman  v.  Ringland,  4  Watts 
&  S.  (Pa.)  149;  Taliaferro  v.  Taliaferro,  6  Ala.  406;  Moore  v.  Green,  3 
B.  Mon.  (Ky.)  407.  Other  cases  of  this  nature  are  Botsford  v.  Burr,  2 
Johns.  (N.  Y.)  Ch.  405;  Dorsey  v.  Clarke,  4  Harr.  &  J.  (Md.)  551;  Trap- 
nail  v.  Brown,  19  Ark.  39;  Kellum  v.  Smith,  33  Pa.  St.  158;  Levy  ». 
Brush,  45  N.  Y.  589;  Spencer  v.  Lawton,  14  R.  I.  494. 


CH.   VI.]  TRUSTS   IMPLIED   BY  LAW.  Ill 

latter  orally  agrees  to  do  this,  and  this  agreement  is  not  a 
contract  to  convey  land,  nor  a  declaration  of  trust.  When 
the  agent,  thus  appointed,  takes  a  contract  of  sale  or  lease 
from  the  owner  in  his  own  name,  two  English  cases 
have  held  that  the  principal  could  compel  specific  perform- 
ance in  his  own  favor.1  In  one  of  these  cases,  the  agency  was 
admitted  by  a  demurrer ;  in  the  other,  it  was  put  in  issue ; 
but  the  decision  in  both  cases  was  that  the  contract  of  the 
agent  was  the  contract  of  the  principal,  and  enforceable  by 
him.  And  in  the  same  way  it  would  seem  that  a  conveyance 
of  the  legal  title  to  the  agent  in  pursuance  of  the  contract 
would  be  a  conveyance  of  the  equitable  title  to  the  principal, 
by  a  legal  consequence  which  the  agent  cannot  prevent  or 
deny.  It  is  true  in  a  sense  that  the  relation  depends  upon 
the  oral  agreement,  but  after  the  agreement  is  made  and  the 
relation  of  agent  and  principal  established,  a  transfer  to  one 
is  in  equity  a  transfer  to  the  other.2 

§  96  a.  It  has  been  held  that  a  trust  arises  when  the  one 
who  has  got  the  land  has  been  enabled  to  do  it  only  by  dint 
of  his  promise  to  convey  it  to  another,  upon  the  faith  of  which 
promise  the  latter  has  parted  with  some  interest  in  the  prop- 
erty in  question.  Thus,  where  a  man  who  was  in  possession 
of  land  under  contract  for  its  purchase,  was  induced  to  aban- 
don that  interest,  by  an  oral  promise  to  buy  and  hold  the 
land  for  him,  the  trust  relation  thus  created  was  held  a  good 
defence  to  an  action  afterward  brought  by  the  party  who 


1  Heard  v.  Pilley,  L.  R.  4  Ch.  518;   Cave  ».  Mackenzie,  46  L.  J.  (Ch.) 
564.     And  see  DeMallagh  r.  DeMallagh,  77  Cal.  126. 

2  Pillsbury  v.  Pillsbury,  17  Me.  107 ;  Sweet  v.  Jacocks,  6  Paige  (N.  Y.) 
355;  Firestone  v.  Firestone,  49   Ala.  128;  Chastain  v.  Smith,  30  Ga.  96. 
See  Follansbe  v.  Kilbreth,  17  111.  522;  Jenkins  v.  Eldredge,  3  Story,  289; 
Dennis  v.  McCagg,  32  111.  429;  Heacock  v.  Coatesworth,  Clarke  (N.  Y.) 
Ch.  84;  Taylor  v.  Salmon,  4  Myl.  &  C.  134;  Rives  v.  Lawrence,  41  Ga. 
283;  Moore  v.  Pickett,  62  111.  158;  Bosseau  i>.  O'Brien,  4  Bissell  (C.  C.) 
395;   Johnson  r.  Brooks,  93  N.  Y.  337;   Caruthers   v.  Williams,  21  Fla. 
485;  Colt  F.  Clapp,  127  Mass.  476.     But  see  Rough  ton  v.  Rawlings,  88 
Ga.  819. 


112  STATUTE   OF   FRAUDS.  [CH.     VI. 

had  made  the  promise,  to  deprive  him  of  possession.1  And 
where  one  party,  by  virtue  of  his  previous  relation  to  the 
property,  has  an  equitable  interest  in  it,  as,  for  example,  the 
mortgagor  of  an  estate  about  to  be  sold  under  the  mortgage, 
another  who  has  promised  to  buy  it  in  for  the  benefit  of  the 
party  interested  will  be  treated  as  a  trustee  and  affected  by 
the  mortgagor's  equity.2 

1  Dodge  v.  Wellman,  1  Abb.  (N.  Y.)  App.  Dec.  512.     See  Church  v. 
Kidd,  3  Hun  (N.  Y.)  254;  Boynton  v.  Housler,  73  Pa.  St.  453;  Payne  v. 
Patterson,  77  Pa.  St.  134;  Wolford  v.  Herrington,  86  Pa.  St.  39. 

2  Ryan  v.  Dox,  34  N.  Y.  307.     See  Sandford  v.  Norris,  4  Abb.  (N.  Y.) 
App.   Dec.   144;    Judd  v.  Mosely,  30  Iowa,  423;    Ragan  v.  Campbell,  2 
Mackey  (D.  of  C.)  28;  Fishback  v.  Green,  87  Ky.  107;  Cutler  v.  Babcock, 
81  Wise.  191. 


CH.    VII.]  EXPRESS   TRUSTS.  113 


CHAPTER  VIL 

EXPRESS  TRUSTS. 

§  97.  WE  come  now  to  consider  the  formalities  which  are 
required  by  the  Statute  of  Frauds  in  cases  of  express  trusts 
of  lands,  tenements,  or  hereditaments.  These  are,  that  the 
declaration  of  creation  of  such  trusts  "  shall  be  manifested  or 
proved  by  some  writing  signed  by  the  party  who  is  by  law 
entitled  to  declare  such  trusts,  or  by  his  last  will  in  writing." 
It  has  been  suggested  that,  by  a  comparison  of  the  ninth  sec- 
tion of  the  English  statute  with  the  seventh,  just  referred  to, 
it  appears  to  have  been  the  intention  of  the  legislature  to 
require  by  the  latter  that  the  trust  should  actually  be  created 
by  writing;  but  it  is  admitted  that,  whatever  the  intention 
may  have  been,  it  is  clear,  upon  the  language  employed,  that 
a  trust  in  lands  is  only  required  to  be  manifested  or  proved 
by  written  evidence.1  From  this  it  results  that  the  instru- 
ment in  writing  required  by  the  statute  may  be  in  terms  less 
formal  than  would  be  required  for  the  creation  of  a  trust,  and 
that  the  making  of  it  is  to  be  regarded  as  an  entirely  inde- 
pendent transaction.  It  has  been  uniformly  held,  though 
perhaps  not  necessarily,  on  the  ground  of  this  peculiarity  of 
phraseology,2  that  it  may  be  executed  subsequently  to  the 
creation  of  the  trust,3  or  even,  it  is  said,  in  anticipation  of 

1  Lewin  on  Trusts,  30;  Cook  v.  Barr,  44  N.  Y.  156;  Gordon  v.  McCul- 
loh,  66  Md.  245. 

2  See  post,  §  104. 

8  Forster  v.  Hale,  5  Ves.  308  ;  Barrell  v.  Joy,  16  Mass.  221 ;  Wright  ». 
Douglass,  7  N.  Y.  564;  Rutledge  v.  Smith,  1  McCord  (S.  C.)  Ch.  119; 
Price  v.  Brown,  4  S.  C.  144;  Maccubbin  v.  Cromwell,  7  Gill  &  J.  (Md.) 
157;  Newkirk  v.  Place,  47  N.  J.  Eq.  477. 

8 


114  STATUTE   OF   FEAUDS.  [CH.   VII. 

it ; l  or  it  may  be  executed  subsequently  to  the  death  of  the 
grantor;2  or  the  bankruptcy  of  the  grantee.3  The  conse- 
quences are  important ;  for  if  the  trust  had  no  effect  previously 
to,  or  independently  of,  the  written  declaration,  the  trust 
property  could  not  be  disposed  of  by  the  cestui  que  truest  in  the 
meanwhile,  and  would  be  subject  to  the  acts  and  encum- 
brances of  the  ostensible  owner.  4 

§  98.  It  has  uniformly  been  held  that  letters  under  the  hand 
of  the  trustee,  distinctly  referring  to  the  trust,  are  sufficient 
as  written  manifestations  or  proofs  to  satisfy  the  statute ; 5 
and  in  Massachusetts  a  printed  pamphlet,  published  and  cir- 
culated by  the  trustee,  has  also  been  considered  sufficient.6 
So  with  entries  made  by  the  trustee  in  his  books,  or  any 
memorandum,  however  informal,  under  his  hand,  from  which 
the  fact  of  the  trust  and  the  nature  of  it  can  be  ascertained.7 

§  99.  In  the  case  of  Steere  v.  Steere,8  Chancellor  Kent  had 
occasion  to  decide  upon  the  effect  of  a  series  of  letters  from 
the  alleged  trustee,  and  among  other  grounds  for  his  opinion 
that  they  did  not  furnish  such  proof  of  the  trust  as  the  law 
required,  he  remarks  that  some  of  them  were  not  addressed 


1  Jackson  v.  Moore,  6  Cowen  (N.  Y.)  706. 

2  Ambrose  v.  Ambrose,  1  P.  "Wms.  321 ;  Wilson  v.  Dent,  3  Sim.  385. 
8  Gardner  ».  Rowe,  2  Sim.  &  S.  346. 

«  Price  v.  Brown,  4  S.  C.  144.  See  Smith  ».  Howell,  3  Stockt.  (N.  J.) 
Ch.  349. 

6  Forster  v.  Hale,  5  Ves.  308;  O'Hara  v.  O'Neil,  7  Bro.  P.  C.  227; 
Crook  v.  Brooking,  2  Vern.  50;  Morton  v.  Tewart,  2  Young  &  C.  67; 
Steere  v.  Steere,  5  Johns.  (K  Y.)  Ch.  1;  Movan  v.  Hays,  1  Johns.  (N.  Y.) 
Ch.  339;  Maccubbin  ».  Cromwell,  7  Gill  &  J.  (Md.)  157;  Wright  v. 
Douglass,  7  N.  Y.  564;  Day  ».  Roth,  18  N.  Y.  448;  Newkirk  r.  Place, 
47  N.  J.  Eq.  477;  McCandless  ».  Warner,  26  W.  Ya.  754;  Taft  v. 
Dimond,  16  R.  I.  584. 

6  Barrell  v.  Joy,  16  Mass.  221. 

7  Barrow  r.   Greenough,    3   Ves.   Jr.    151;    Lewin    on    Trusts,    30; 
Roberts  on  Frauds,  95 ;  Smith  v.  Matthews,  3  De  G.  F.  &  J.  139.     In 
Homer  v.  Homer,  107  Mass.  82,  the  entry  in  the  book  did  not  sufficiently 
declare  the  trust.     And  see  tlrann  v.  Coates,  109  Mass.  581  ;    Ames  v. 
Scudder,  83  Mo.  189. 

8  Steere  v.  Steere,  5  Johns.  (N.  Y.)  Ch.  1. 


CH.  -VIL]  EXPRESS  TRUSTS.  115 

to  the  cestui  que  trust,  and  were  not  intended  for  the  purpose 
of  manifesting  or  giving  evidence  of  the  trust ;  and  in  these 
respects,  he  says,  they  differed  from  letters  which  had  been 
admitted  in  English  cases.1  The  opinion  of  the  learned 
Chancellor  shows,  however,  abundant  grounds  upon  which 
the  letters  before  him  should  be  held  insufficient;  for  in- 
stance, as  not  containing  the  substance  of  the  trust  and  as 
varying  from  the  allegations  in  the  bill.  He  does  not  there- 
fore expressly  decide  upon  the  point  suggested,  and  we  may 
suppose  that  he  would  not  have  decided  according  to  the  inti- 
mation given  in  his  opinion,  if  the  case  had  depended  upon 
it,  and  his  attention  had  been  particularly  drawn  in  that 
direction.  It  may  well  be  doubted  whether  in  principle  and 
reason  it  is  necessary  that  the  writing  upon  which  a  trustee 
is  to  be  held  to  his  conscientious  duty  should  have  been  for- 
mally promulgated  by  him,  and  addressed  to  those  interested, 
as  evidence  of  his  obligation ;  and  the  general  spirit  of  the 
decisions  upon  this  class  of  cases  seems  to  be  averse  to  such 
a  doctrine.  Thus  a  trust  is  often  proved  by  the  recital  in  a 
deed,2  which,  however  solemn  a  mode  of  statement,  is  not 
addressed  to  the  cestui  que  trust,  though  it  may  be  made  with 
the  intention  of  manifesting  the  trust.  In  Barrell  v.  Joy,3 
in  the  Supreme  Court  of  Massachusetts,  the  defendant  had 
received  from  the  plaintiff's  father  sundry  conveyances  of 
land,  and,  upon  a  suit  brought  after  the  father's  death,  the 
plaintiff  alleged  that  the  conveyances,  though  in  terms  abso- 
lute, were  for  the  purpose  of  enabling  the  defendant  to  satisfy 
certain  demands  he  had  against  the  father,  and  that  the 
remainder  was  to  be  held  in  trust  for  him,  of  which  trust  they 
claimed  the  benefit.  There  was  a  pamphlet  in  evidence  pub- 
lished by  the  defendant,  in  which,  in  the  opinion  of  the 

1  O'Hara  v.  O'Neil,  7  Bro.  P.  C.  227  ;  Foreter  ».  Hale,  3  Ves.  Jr.  696. 

1  Deg  v.  Deg,  2  P.  Wms.  412 ;  Bellamy  v.  Burrow,  Cas.  Temp.  Talb. 
97;  Kirk  ».  Webb,  Prec.  Ch.  84;  Hutchinson  v.  Tindall,  2  Green  (N.  J.) 
Ch.  357 ;  Wright  v.  Douglass,  7  N.  Y.  564. 

»  Barrell  v.  Joy,  16  Mass.  221. 


116  STATUTE   OF  FKAUDS.  [CH.   VII. 

court,  he  admitted  that  he  held  the  land  in  trust,  as  alleged 
by  the  complainants ;  but  what  they  considered  as  even  more 
satisfactory  and  convincing  evidence  was  that  the  defendant, 
in  an  indenture  between  himself  and  certain  third  parties, 
covenanted  with  them  to  sell  a  portion  of  the  lands  he  had 
received,  and  apply  the  proceeds  to  the  payment  of  demands 
which  they  held  against  the  plaintiff's  father;  from  which  it 
was  evident  that  he  considered  himself  as  holding  the  land 
upon  trust  and  not  for  his  own  use.  Parker,  C.  J.,  delivering 
the  opinion  of  the  court,  said :  "  This  is  a  sufficient  declara- 
tion in  writing,  for,  although  not  made  to  Barrell  (the  cestui 
que  trust),  it  is  available  to  him  or  his  representatives. "  It 
can  hardly  be  said  that  this  indenture  was,  intended  by  the 
defendant  as  a  manifestation  of  the  trust  on  his  part ;  and  if 
his  engagement  to  make  that  disposition  of  the  land  had  been 
contained  in  a  letter  to,  instead  of  an  indenture  executed 
with,  third  parties,  the  question  would  be  quite  identical  with 
that  before  the  Chancellor  in  Steere  v.  Steere ;  but  it  does  not 
seem  that  the  mere  form  of  the  manifestation  should  make  any 
difference  in  principle.  In  a  more  recent  case  than  either, 
Chancellor  Vroom,  of  New  Jersey,  used  the  following  lan- 
guage: "A  declaration  of  trust  requires  no  formality,  so  that 
it  be  in  writing  and  have  sufficient  certainty  to  be  ascertained 
and  executed.  It  may  be  in  a  letter,  or  upon  a  memoran- 
dum, and  it  is  not  material  whether  the  writing  be  made  as 
evidence  of  the  trust  or  not."  l  In  Forster  v.  Hale,  although 
the  parol  declarations  of  the  party  were  adverse  to  the  infer- 
ence of  a  trust,  and  it  was  in  evidence  that  he  had  refused  to 
execute  a  declaration,  yet,  as  the  trust  was  clearly  made  out 
upon  the  face  of  a  series  of  letters  under  his  hand,  he  was 
charged  accordingly.2  In  such  a  case,  it  is  clear  that  the 
trustee  must  have  been  held  upon  his  letters  in  spite  of  his 
intentions.  On  this  point,  therefore,  it  seems  to  be  much 

i  Hutchinson  v.  Tindall,  2  Green  (N.  J.)  Ch.  357.    See  Hutchins  v. 
Van  Vechten,  140  N.  Y.  115. 
3  Forster  v.  Hale,  5  Ves.  308. 


CH.   VIL]  EXPBESS   TRUSTS.  117 

the  better  opinion  that  it  is  no  objection  to  letters  and  other 
informal  writings  or  memoranda  of  the  trustee,  introduced 
for  the  purpose  of  proving  the  trust,  that  they  were  drawn  up 
for  another  purpose,  and  not  addressed  to,  nor  intended  for 
the  use  of,  the  cestui  que  trust.1 

§  100.  With  more  formal  instruments  of  manifestation, 
there  will  generally  be  little  difficulty  It  has  before  been 
observed,  incidentally,  that  a  recital  in  a  deed  was  a  good 
manifestation  of  a  trust,  and  the  same  is  true  of  a  deposition 
of  tne  trustee,  signed  and  sworn  to  by  him,  and  fully  and 
clearly  setting  out  the  terms  of  the  trust.2  So  of  a  recital  in 
a  bond.3  So,  also,  the  answer  of  the  defendant  in  a  suit  to 
enforce  the  trust,  admitting  it  as  charged,  is  clearly  a  good 
manifestation  within  the  statute;4  or  even  an  answer,  made 
by  the  party  to  be  charged  in  another  suit,  not  inter  paries, 
may  bind  him.6 

§  101.  In  Hampton  v.  Spencer,  decided  a  few  years  after 
the  Statute  of  Frauds  was  enacted,  the  plaintiff,  in  consider- 
ation of  <£80  paid  by  the  defendant,  conveyed  a  house  and 
surrendered  a  copyhold  estate  to  the  defendant  and  his  heirs ; 
the  bill  was  for  a  reconveyance  on  payment  of  the  remainder 
due  of  the  X80  and  interest.  The  defendant,  by  answer, 
insisted  that  the  conveyance  was  absolute  to  him  and  his 
heirs,  without  any  promise,  clause,  or  agreement  that  the 

1  Roberts  on  Frauds,  102.     This  view  is  confirmed  by  a  comparison 
with  those  cases  in  which  it  has  been  held  that  a  signature  (under  the 
fourth   section)  by  a  subscribing  witness  who  knew  the  contents  of  the 
paper  was  a  signature  within  the  statute.     See,  in  particular,  Welford  v. 
Beazely,  3  Atk.  503,  where  Lord  Hardwicke  said  that  "  the  word  party 
in  the  statute  is  not  to  be  construed  party  as  to  a  deed,  but  person  in  gen- 
eral, or  else  what  would  become  of  those  decrees  where  signing  of  letters, 
by  which  the  party  never  intended  to  bind  himself,  has  been  held  to  be  a 
signing  within  the  statute."     And  see  Urann  v.  Coates,  109  Mass.  581. 

2  Ante,  §  99;  Pinney  v.  Fellows,  15  Vt.  525. 

«  Gomez  v.  Tradesmen's  Bank,  4  Sandf.  (N.  Y.)  102. 

4  Nab  v.  Nab,  10  Mod.  404;  Ryall  v.  Ryall,  1  Atk.  59;  Maccubbin  v. 
Cromwell,  7  Gill  &  J.  (Md.)  157;  Jones  v.  Slubey,  5  Harr.  &  J.  (Md.) 
372;  Patton  v.  Chamberlain,  44  Mich  5. 

6  Cook  v.  Barr,  44  N.  Y.  156.     See  Haigh  v.  Kaye,  L.  R.  7  Ch.  469. 


118  STATUTE   OF  FRAUDS.  [CH.   VII. 

plaintiff  might  redeem ;  but  he  confessed  that  it  was  in  trust 
that  after  the  £80  with  interest  was  paid,  the  defendant 
should  stand  seised  for  the  benefit  of  the  plaintiff's  wife  and 
children,  although  no  such  trust  was  declared  by  writing. 
The  trust  was  not  charged  in  the  bill.  For  the  plaintiff  it 
was  insisted  that  he  having  replied  to  the  defendant's  answer, 
who  had  not  made  any  proof  of  such  pretended  trust,  the 
defendant  was  bound  by  his  confession  that  he  was  not  to 
have  the  estate  absolutely  to  himself,  and  no  regard  ought  to 
be  had  to  the  matter  set  forth  in  avoidance  of  the  plaintiff's 
demands,  because  the  defendant  had  not  proved  it;  yet  the 
court  decreed  the  trust  for  the  benefit  of  the  wife  and 
children.1 

§  102.  This  case  decides,  it  seems,  that  the  answer  of  a 
defendant,  setting  up  a  trust  in  favor  of  third  parties,  will 
be  sufficient  evidence  of  it  to  defeat  a  complainant's  equity, 
in  a  suit  brought  to  recover  or  charge  the  land,  and  not 
alleging  the  trust.  In  this  view  it  certainly  conflicts  with 
the  principle  that  a  defendant  cannot  by  his  answer  dis- 
charge himself,  but  must  establish  his  matter  in  avoidance 
by  proof.  It  does  not  appear  ever  to  have  been  followed 
in  England  nor  in  this  country.  In  a  case  in  Chancery  in 
New  Jersey,  where  a  deed  was  made,  absolute  on  its  face 
and  without  any  actual  consideration  paid,  and  on  a  bill  to 
set  it  aside  as  obtained  by  fraud,  the  answer  admitted  that 
no  part  of  the  consideration  was  paid,  but  averred  that  the 
defendant  held  it  in  trust  for  the  wife  and  children  of  the 
grantor  (the  plaintiff),  and  proffered  willingness  to  execute 
a  declaration  of  trust  or  secure  the  interest  of  the  wife  and 
children  in  any  way  the  court  should  direct;  it  was  held  that 
such  an  answer,  not  being  responsive  to  the  bill,  was  not  evi- 
dence of  the  trust.  Chancellor  Vroom  said:  "I  am  inclined 
to  believe  that  if  the  present  complainant  had  filed  a  bill 
claiming  this  deed  to  be  a  deed  of  trust,  and  praying  that 

1  Hampton  v.  Spencer,  2  Vern.  288. 


CH.   VII.]  EXPRESS   TRUSTS.  119 

it  might  be  so  decreed,  according  to  the  original  intention 
of  the  parties,  the  answer  of  the  defendant,  admitting  the 
trust,  would  have  been  good  evidence  of  it.  It  would  have 
amounted  to  a  sufficient  declaration  of  the  trust.  But  it 
would  seem  to  be  different  where  a  complainant  seeks,  on 
the  ground  of  fraud,  to  set  aside  a  deed  absolute  on  the  face 
of  it,  and  confessedly  without  any  actual  consideration  paid ; 
for  ...  to  suffer  a  defendant  in  such  case  to  come  in  and 
avoid  the  claim  by  setting  up  a  trust,  would  be  to  permit 
him  to  create  a  trust  according  to  his  own  views,  and 
thereby  prevent  the  consequences  of  a  fraud."1  The  posi- 
tion here  taken  seems  to  have  been  adopted  also  in  the 
courts  of  Maryland.2 

§  103.  Another  class  of  cases  in  which  the  answer  of  a 
defendant  in  chancery  is  made  to  prove  a  trust,  may,  for  the 
sake  of  completing  our  examination  of  this  topic,  be  men- 
tioned here.  Where  a  bill  is  filed  against  an  absolute  devisee 
of  an  estate,  alleging  that  it  is  held  by  him  upon  a  trust  not 
sufficiently  declared  under  the  statute,  or  illegal  or  fraudu- 
lent, there  the  defendant  will  be  compelled  in  equity  to  dis- 
close whether  any  such  trust  exists,  although  he  plead  the 
Statute  of  Frauds;  and  on  his  answering  in  the  affirmative, 
his  answer  is  evidence,  not  to  set  up  the  trust,  but  to  defeat 
his  apparent  title,  and  to  found  a  decree  for  a  resulting  trust 
to  the  heir.3 

§  104.  Upon  examination  of  the  decisions  which  have  been 
quoted  to  the  admissibility  of  letters,  recitals,  answers,  and 
memoranda  in  general  made  by  the  trustee,  as  manifestations 
of  the  trust,  it  will  be  seen  that  they  have  been  commonly 
sustained  upon  the  ground  that  the  Statute  of  Frauds  does 
not  in  its  terms  require  that  the  trust  shall  be  created  or 

1  Hutchinson  v.  Tindall,  2  Green  Ch.  363. 

*  Jones  v.  Slubey,  5  Harr.  &  J.  372 ;  Maccubbin  u.  Cromwell,  7  Gill  & 
J.  157. 

•  Adlington  v.  Cann,  3  Atk.  141;  Stickland  v.  Aldridge,  9  Ves.  516; 
Muckleston  v.  Brown,  6  Ves.  52,  and  Bishop  i«.  Talbot  there  cited.     See 
Rutledge  v.  Smith,  1  McCord  (S.  C.)  Ch.  119. 


120  STATUTE   OF  FRAUDS.  [CH.  VII. 

declared  in  writing,  but  only  that  such  declaration  or  creation 
shall  be  manifested  or  proved  by  writing.  The  question  how 
far  such  writings  would  be  admissible  (in  view  of  their  infor- 
mality and  in  view  of  their  not  being  contemporaneous  with, 
or  forming  any  part  of,  the  original  transaction  by  which 
the  trust  was  created),  under  a  different  phraseology  of  the 
law  may  be  very  important.  In  Massachusetts  and  in  New 
York,  the  statute  has  been  altered:  the  former  requiring  that 
the  trust  shall  be  created  or  declared  by  writing,  and  the 
latter  that  it  shall  be  created  or  declared  by  deed  or  con- 
veyance in  writing.1  The  subject  was  presented  in  the  New 
York  Court  of  Appeals  in  the  case  of  Wright  v.  Douglass, 
where  the  question  was  upon  the  sufficiency  of  a  recital  in  a 
deed  as  a  manifestation  of  the  trust.  Ruggles,  Ch.  J.,  deliver- 
ing the  opinion  of  a  majority  of  the  court,  said :  "  Under  our 
former  statute  in  relation  to  this  subject,  it  was  only  neces- 
sary that  the  trust  should  be  manifested  in  writing;  and 
therefore  letters  from  the  trustee  disclosing  the  trust  were 
sufficient.  .  .  .  Our  present  statute  requires  that  the  trust 
should  be  created  or  declared  by  deed  or  conveyance  in  writ- 
ing, subscribed  by  the  party  creating  or  declaring  the  trust. 
But  it  need  not  be  done  in  the  form  of  a  grant.  A  declaration 
of  trust  is  not  a  grant.  It  may  be  contained  in  the  reciting 
part  of  a  conveyance.  Such  a  recital  in  an  indenture  is  a 
solemn  declaration  of  the  existence  of  the  facts  recited,  and 
if  the  trustee  and  cestui  que  trust  are  parties  to  the  convey- 
ance, the  trust  is  as  well  and  effectually  declared  in  that  form 
as  in  any  other."  2  It  would  seem  from  this  that  if  the  New 
York  statute  as  altered  had  not  required  that  the  trust  should 
be  declared  or  created  by  deed  or  conveyance  in  writing,  any 
recital  in  a  deed,  whether  the  trustees  and  cestui  que  trust 
were  parties  or  not,  or  any  "solemn  declaration  of  the  exist- 
ence of  the  facts, "  upon  which  a  trust  arises,  would  be  suffi- 
cient. Striking  out  the  words  "deed  or  conveyance,"  the 

1  N.  Y.  Rev.  Stat.  134;  Mass.  Pub.  Stat.  1882,  c.  141,  §  1. 

2  Wright  v.  Douglass,  7  N.  Y.  569. 


CH.    VII.]  EXPRESS   TRUSTS.  121 

statute  is  left  substantially  the  same  as  the  English.1  We 
may  conclude,  therefore,  that  the  phraseology  of  the  English 
statute  has  not  so  extensive  an  effect  as  has  been  supposed. 
A  recital  of  a  trust  is,  by  the  very  etymology  of  the  word, 
subsequent  to  the  creation  of  the  trust ;  and  a  formal  declara- 
tion of  the  facts  upon  which  the  trust  arises  also  seems  to 
presuppose  an  already  existing  trust  obligation.  In  a  case  in 
South  Carolina,  the  Court  of  Appeals  take  that  view.  The 
defendant  there  was  a  widow  and  executrix  under  a  will  by 
which  her  husband  had  devised  the  whole  of  his  property  to 
her,  but  upon  an  understanding  that  it  should  be  disposed  of 
according  to  a  prior  will  in  which  certain  provision  had  been 
made  for  his  grandchildren.  The  defendant  afterwards  signed 
a  writing  by  which  she  declared  that  there  was  due  to  her 
grandson  (the  plaintiff's  intestate)  a  certain  sum  of  money, 
on  account  of  the  legacies  left  him  by  his  grandfather,  and 
promised  that  the  same  with  interest  should  be  paid  out  of 
her  estate.  The  court  said  that  all  declarations  of  trust  must 
be  in  writing,  though  it  was  not  necessary  they  should  be 
constituted  in  writing;  and  that  the  instrument  in  question, 
though  not  in  terms  a  declaration  of  trust,  was  a  declaration 
of  such  facts  as  raised  a  trust,  and  was  consequently  suffi- 
cient.2 And  in  Massachusetts,  the  court,  in  Homer  v.  Homer 
(cited  ante,  §  94),  seems  to  have  considered  that  the  entry  on 
the  trustee's  book  would  have  been  a  good  declaration  of  the 
trust,  if  it  had  been  sufficiently  full.3  With  such  light  upon 

1  By  the  statutes  of  1860,  the  law  in  New  York  was  again  changed. 
See  Cook  r.  Barr,  44  N.  Y.  156. 

2  Rutledge  v.  Smith,  1  McCord  Ch.  119. 

8  Homer  v.  Homer,  107  Mass.  86.  In  the  case  of  Jenkins  v.  Eldredge, 
3  Story,  294,  decided  after  the  revision  of  the  statutes  of  Massachusetts, 
Mr.  Justice  Story  said:  "My  opinion  has  proceeded  upon  the  ground 
that  there  is  no  substantial  difference  between  the  Statute  of  Frauds  of 
Massachusetts,  either  under  the  Act  of  1783,  c.  37,  §  3,  or  the  Revised 
Statutes  of  1835,  c.  59,  §  30,  and  the  statute  of  29  Car.  II.  c.  3,  on  the 
subject  of  trusts;  and  such  is  the  conclusion  to  which  I  have  arrived, 
upon  the  examination  of  these  statutes."  (See  Jenkins  v.  Eldredge, 
abstracted  in  the  note  to  §  111,  post.) 


122  STATUTE   OF   FRAUDS.  [CH.    VII. 

this  question  as  is  afforded  by  these  decisions,  it  seems  we 
must  doubt  whether,  in  those  States  where  the  law  requires 
a  trust  to  be  created  or  declared  by  writing,  it  is  not  suffi- 
cient, as  it  is  in  England  under  the  old  statute,  that  that 
declaration  be  a  clear  statement  of  the  facts  upon  which  the 
trust  arises,  and  whether  it  is  material  in  what  form  or  at 
what  time  it  be  made. 

§  105.  The  language  of  the  statute  in  the  seventh  section 
is,  "Some  writing  signed,"  etc.,  and  it  is  decided  that  the 
writing  is  not  required  to  be  sealed.1  In  regard  to  the  memo- 
randum in  these  cases  of  trusts,  like  that  required  by  the 
fourth  section  in  cases  of  certain  contracts,  it  is  sufficient  if, 
of  several  papers  which  together  go  to  make  up  the  required 
manifestation  of  the  trust,  one  of  them  be  signed,  provided 
the  others  be  so  connected  with  it,  in  sense  and  meaning,  as 
to  render  unnecessary  a  resort  to  parol  evidence  to  show  their 
relation  to  each  other.2 

§  106.  The  requisition  in  the  statute,  that  the  writing  shall 
be  "signed  by  the  party  who  is  by  law  enabled  to  declare 
such  trusts,  or  by  his  last  will  in  writing,"  will  be  met  by 
the  signature  of  the  grantor  himself,  if  the  declaration  be 
previous  to,  or  contemporaneous  with,  the  act  of  disposition. 
Having  once  divested  himself  of  all  interest  in  property,  by 
an  absolute  conveyance,  it  is  no  longer  competent  for  him, 
either  by  parol  or  written  declaration,  to  convert  a  party 
taking  under  such  a  conveyance  into  a  trustee,  except  of 
course  where  the  circumstances  of  the  transaction  were  such 
as  to  raise  a  resulting  or  implied  trust  upon  the  conveyance, 
in  which  case  the  person  entitled  to  such  an  interest  would 
clearly  have  a  right  at  any  time  to  declare  the  trust.3  But 
when  a  trustee  holds  an  estate  for  another,  on  a  trust  either 

1  Adlington  v.  Cann,  3  Atk.  141;  Boson  v.  Statham,  1  Eden,  508. 

2  Forster  v.  Hale,  3  Ves.  Jr.  696.     See  this  point  examined  under  the 
head  of  the  written  memorandum  required  by  the  fourth  section. 

*  Hill  on  Trustees,  62,  and  cases  there  cited.  And  see  Sturtevant  v. 
Sturtevant,  20  N.  Y.  39;  Phillips  v.  South  Park  Commissioners,  119 
111.  626. 


CH.   VII.]  EXPRESS   TEUSTS.  123 

express  or  implied,  although  he  succeeds  to  the  grantor's 
legal  title,  a  writing  to  declare  a  further  trust  of  the  estate 
so  held  is  to  be  signed  not  only  by  the  trustee,  but  by  the 
beneficial  owner.1 

§  107.  Where  there  has  been  an  absolute  devise  of  lands, 
a  mere  declaration  in  writing  by  the  devisor  asserting  a  trust, 
not  communicated  to  the  devisee,  and  not  executed  and 
attested  as  required  by  the  statute  in  cases  of  wills,  will  be 
insufficient  to  engraft  a  trust  upon  the  will.2  A  paper  testa- 
mentary in  form,  but  inefficient  as  a  will  for  want  of  regular 
execution  and  attestation  as  such,  may,  however,  serve  as  a 
written  manifestation  of  the  trust,  where  it  is  not  so  con- 
trolled by  an  absolute  devise.  And  in  any  case,  even  if  the 
trust  rest  entirely  in  oral  agreement  between  the  devisor 
and  devisee,  the  trust  will  be  enforced  notwithstanding  the 
absolute  devise,  if  it  appear  that  the  devise  was  made  upon 
the  faith  of  the  devisee's  agreement  that  the  devise  being 
made  to  him  absolutely,  he  would  carry  out  the  trust.3  But 
generally  speaking,  a  parol  declaration  of  trust  in  land  is 
revocable  at  any  time,  and  is  revoked  by  a  devise  of  the 
declarant  to  another  person.4 

§  108.  All  that  remains  before  concluding  this  chapter  is 
to  see  what  form  of  language  will  be  sufficient  to  manifest  a 
trust  as  required  by  the  statute.  It  has  been  before  remarked 
that  the  words  used,  though  no  formulary  of  expression  be 
prescribed,  must  distinctly  relate  to  the  subject-matter,  and 
must  serve  to  show  the  court  that  there  is  a  trust,  and  what 
that  trust  is.  An  illustration  of  this  principle  is  presented 
in  the  case  of  Forster  v.  Hale,  where  it  was  attempted  to 
establish  a  trust  upon  the  expressions  "our"  and  "your," 
contained  in  letters  of  the  defendant  to  the  alleged  cestui  que 

1  Tierney  ».  Wood,  19  Beav.  330;  Kronheim  v.  Johnson,  7  Ch.  Div.  60. 

9  Adlington  r.  Cann,  3  Atk.  141. 

8  Stickland  v.  Aldridge,  9  Ves.  516;  Podmore  v.  Gunning,  7  Simons, 
644;  Tierney  v.  Wood,  19  Beav.  330;  Barrell  v.  Hanrick,  42  Ala.  60; 
post,  §  442 ;  ante,  §  94. 

4  Kelly  v.  Johnson,  34  Mo.  400. 


124  STATUTE   OF   FRAUDS.  [CH.    VII. 

trust,  referring  to  the  property  in  dispute.  It  was  held  that 
such  terms  did  not  necessarily  imply  that  the  parties  to  the 
correspondence  were  jointly  interested  in  the  estate  alluded 
to ;  and  the  Master  of  the  Rolls,  Sir  Richard  Pepper  Arden, 
said  there  was  great  danger  in  executing  trusts  proved  only 
by  letters  loosely  speaking  of  trusts  which  might  or  might  not 
be  actually  and  definitively  settled  between  the  parties,  with 
such  expressions  as  those  above  quoted,  intimating  only  some 
intention  of  a  trust;  and  that  it  should  be  clear  from  the 
declaration  what  the  trust  was.1  So  in  the  case  of  Steere  v. 
Steere,  before  Chancellor  Kent,  two  of  the  defendants,  sons 
of  Stephen  Steere,  under  whose  will  the  plaintiffs  claimed, 
had  purchased  at  judgment  sale  certain  land  belonging  to 
their  father,  and  it  was  alleged  that  they  held  it  under  a 
trust  to  reconvey  to  the  testator  on  repayment  of  the  pur- 
chase-money and  expenses.  The  evidence  relied  upon  con- 
sisted of  a  number  of  letters  written  by  one  or  more  of  the 
defendants,  in  which  frequent  allusion  was  made  to  the  estate, 
and  to  a  promise  by  the  defendants  that  the  family  should 
have  a  part  of  it,  that  it  should  be  held  for  the  family,  with 
similar  general  expressions.  The  Chancellor  was  clear  that 
such  language  did  not  tend  to  show  the  trust  alleged,  which 
was  a  trust  in  favor  of  the  testator ;  but  that  even  if  a  trust 
in  favor  of  the  family  had  been  alleged,  the  suggestions  and 
intimations  were  too  loose  to  found  a  decree  for  specific 
execution.2 

§  109.  Any  instrument,  however,  which  distinctly  shows 
the  trust  relation  existing  between  the  parties  will  be  suffi- 
cient to  satisfy  the  statute,  in  whatever  form  it  may  be.  Thus 
an  acknowledgment  in  writing  that  he  is  indebted  to  another 
for  a  legacy  under  a  will  shows  the  defendant  to  be  a  trustee 
for  the  purpose  of  carrying  out  the  will  to  that  extent.3  So 

1  Forster  ».  Hale,  3  Ves.  Jr.  696  ;  Burke  v.  Wilber,  42  Mich.  327.    See 
Renz  v.  Stoll,  94  Mich.  377. 

2  Steere  r.  Steere,  5  Johns.  (N".  Y.)  Ch.  1. 

«  Rutledge  v.  Smith,  1  McCord  (S.  C.)  Ch.  119. 


CH.   VII.]  EXPRESS   TRUSTS.  125 

where  the  defendant,  the  owner  of  the  legal  title  to  an  estate, 
had  covenanted  with  third  parties  to  sell  part  of  it  and  apply 
the  proceeds  to  the  payment  of  certain  demands  which  they 
held  against  the  plaintiff's  father,  from  whom  the  estate  had 
been  purchased,  it  was  held  to  be  a  sufficient  declaration  of 
trust,  as  furnishing  conclusive  evidence  that,  notwithstanding 
the  defendant  held  the  legal  title,  there  was  a  beneficial 
interest  remaining  in  the  plaintiff's  father.1  So  where  the 
holder  of  a  note  indorsed  to  him  as  security  for  a  debt,  hav- 
ing recovered  judgment  against  the  promisor  and  levied  on 
the  rents  and  profits  of  his  land  for  a  term  of  years,  signed 
a  writing  not  under  seal,  promising  to  pay  to  the  plaintiff 
all  the  rents  which  he  should  receive  after  his  debt  should 
be  paid,  or  to  allow  the  plaintiff  the  use  and  improvement  of 
the  land  after  such  payment,  it  was  held  that  this  was  a  suffi- 
cient declaration  of  trust.2  And  a  mere  private  memoran- 
dum made  by  the  defendant  in  his  own  handwriting,  though 
not  signed,  setting  forth  that  in  a  previous  conversation  with 
the  plaintiff's  testator,  he  had  told  him  that  certain  persons 
(the  plaintiffs)  were  to  have  certain  legacies  and  annuities, 
has  been  held  to  be  a  sufficient  declaration  of  the  trust  for 
those  purposes.8 

§  110.  A  covenant  to  convey  or  hold  lands,  purchased  or 
to  be  purchased,  to  certain  uses,  or  a  bond  to  convey  lands, 
as  the  cestui  que  trust  shall  direct,  is  obviously  equivalent  to 
a  declaration  of  trust.4  So,  also,  where  a  Revolutionary 
soldier  entitled  to  bounty  land  delivered  to  one  Birch  (from 
whom  by  mesne  assignments  it  came  to  the  appellants)  his 
discharge  from  the  army,  indorsing  upon  it  the  following: 
"  This  is  to  certify  that  the  bearer,  John  Birch,  is  entitled  to 

1  Barrel!  v.  Joy,  16  Mass.  221. 

4  Arms  t>.  Ashley,  4  Pick.  (Mass.)  71. 

8  Barrow  v.  Greenough,  3  Ves.  Jr.  152.  See  Urann  v.  Coates,  109 
Mass.  581. 

4  Earl  of  Plymouth  v.  Hickman,  2  Vern.  167;  Blake  v.  Blake,  2  Bro. 
P.  C.  241;  Moorecroft  v.  Dowding,  2  P.  Wms.  314. 


126  STATUTE   OF   FRAUDS.  [CH.   VII. 

all  the  lands  that  I,  Benjamin  Griffin,  am  entitled  to,  either 
from  the  State  or  Continent,  for  my  services  as  a  soldier, 
certified  in  my  discharge,"  Kent,  C.  J-,  held  that  this  cer- 
tificate was  an  assignment  of  Griffin's  equitable  claim  to  the 
land,  was  sufficient  for  that  purpose  without  any  words  of 
inheritance,  and  amounted  to  a  declaration  of  trust.1 

§  111.  Where  there  is  any  written  evidence  showing  that 
the  person  apparently  entitled  is  not  really  so,  parol  evidence 
may  be  admitted  to  show  the  trust  under  which  he  actually 
holds  the  estate.  In  the  case  of  Cripps  v.  Jee,  an  estate 
being  subject  to  certain  encumbrances,  the  grantor  mortgaged 
the  equity  of  redemption,  by  deeds  of  lease  and  release,  to 
two  persons  of  the  name  of  Rogers,  as  purchasers  for  a  con- 
sideration stated  in  the  deed,  the  real  intention  of  the  parties 
being  that  the  Rogerses  should  be  mere  trustees  for  the 
grantor,  and  should  proceed  to  sell  the  estate,  and  after  pay- 
ing the  encumbrances  should  pay  the  surplus  money  to  the 
grantor.  In  the  books  of  account  of  one  of  the  Rogerses, 
there  appeared  an  entry  in  his  handwriting  of  a  year's  inter- 
est paid  to  an  encumbrancer  on  the  estate,  on  account  of  the 
grantor,  and  other  entries  of  the  repayment  of  that  interest  to 
Rogers  by  the  grantor,  and  there  was  also  evidence  of  a  note 
and  bond  given  by  the  Rogerses  to  a  creditor  of  the  grantor, 
in  which  they  stated  themselves  to  be  trustees  of  the  estate  of 
the  grantor.  Lord  Kenyon  held  that  this  written  evidence 
being  inconsistent  with  the  fact  that  the  Rogerses  were  the 
actual  purchasers  of  the  equity  of  redemption,  farther  evi- 
dence by  parol  was  admissible  to  prove  the  truth  of  the  trans- 
action.2 Parol  evidence  has  also  been  admitted  by  Chancellor 

1  Fisher  v.  Fields,  10  Johns.  (N.  Y.)  495. 

2  Cripps  v.  Jee,  4  Bro.  Ch.  472;  Lewin  on  Trusts.  62.     The  principle 
is  somewhat  illustrated  in  the  following  case,  which,  however,  was  decided 
long  anterior  to  Cripps  v.  Jee,  and  apparently  upon  another  ground.     Bill 
filed  to  set  aside  an  assignment  of  a  leasehold  estate,  and  all  other  the 
estate  and  effects  of  the  plaintiff,  upon  a  suggestion  that  the  same  was 
never  Intended  as  an  absolute  assignment  for  the  benefit  of  the  defendant, 
but  made  only  to  ease  the  plaintiff  of  the  trouble  and  care  of  managing 


CH.   VII.]  EXPRESS   TRUSTS.  127 

Kent  to  repel  the  inference  of  a  trust  from  certain  letters  and 
accounts,  in  a  case  where  the  writings  were  of  a  loose  and 
ambiguous  character,  the  principle  being  however  carefully 
reserved,  that  if  the  written  proof  had  been  clear  and  posi- 
tive, it  could  not  have  been  rebutted  by  parol.1  But  in 
Leman  v.  Whitley,  while  the  exception  in  favor  of  trusts 
partly  proved  in  writing  was  recognized,  the  binding  applica- 
tion of  the  Statute  of  Frauds  to  cases  of  mere  parol  trusts 
was  firmly  sustained.  A  son  had  conveyed  an  estate  to  his 
father,  nominally  as  purchaser,  for  the  consideration,  ex- 
pressed in  the  deed,  of  X400,  but  really  as  a  trustee,  in  order 
that  the  father,  who  was  in  better  credit  than  the  son,  might 
raise  money  upon  it  by  way  of  mortgage  for  the  use  of  the 


his  own  concerns  at  that  time  (being  then  under  great  infirmities  of  body 
and  mind),  and  subject  to  a  trust  for  the  benefit  of  the  plaintiff,  if  he 
should  afterwards  be  in  a  capacity  of  taking  care  of  his  own  affairs.  No 
trust  of  any  kind  appeared  on  the  face  of  the  assignment,  but  upon  the 
whole  circumstances  of  the  case,  (viz.),  the  annuity  reserved  to  the  plain- 
tiff being  by  no  means  an  equivalent  to  the  estate  so  disposed  of,  the 
recital  in  the  deed  of  assignment  that  the  plaintiff  was  under  a  disability 
at  that  time,  of  taking  care  of  his  own  affairs,  all  the  effects  in  general 
being  assigned,  as  well  as  the  leasehold  estate,  and  after  a  general  cove- 
nant in  the  deed  from  the  defendant  to  indemnify  the  plaintiff  against 
any  breach  of  covenant  in  the  original  lease,  and  a  special  reservation  to 
the  plaintiff  of  all  the  timber,  etc.,  and  he  set  out  and  allowed  timber  for 
the  repair  of  the  estate  (a  circumstance  principally  relied  on  by  the  Lord 
Chancellor,  as  not  at  all  reconcilable  with  an  absolute  disposition  of  the 
whole  interest  to  the  defendant),  and  other  circumstances  raising  a  strong 
presumption  of  a  trust  intended.  Lord  Chancellor  (Ilardwicke)  admitted 
parol  evidence  to  explain  this  transaction,  viz.,  declarations  by  the  de- 
fendant, at  the  time  the  deed  of  assignment  was  executed,  and  afterwards 
amounting  to  an  acknowledgment  of  such  a  trust  as  the  plaintiff  now 
insisted  upon;  and  his  Lordship  said  such  evidence  was  consistent  with 
the  deed,  as  there  was  all  the  appearance  of  an  intended  trust  upon  the 
face  of  it ;  but,  however,  though  there  can  be  no  parol  declaration  of  a 
trust,  since  the  stat.  of  29  Car.  II.,  yet  this  evidence  is  proper  in  avoid- 
ance of  fraud,  which  was  here  intended  to  be  put  on  the  plaintiff,  for  the 
defendant's  design  was  absolutely  to  deprive  the  plaintiff  of  all  the  benefit 
of  his  estate.  Hutchins  v.  Lee,  1  Atk.  447.  But  see  Dyer's  Appeal,  107 
Pa.  St.  446. 

*  Steere  v.  Steere,  5  Johns.  (N.  Y.)  Ch.  1. 


128  STATUTE   OF  FRAUDS.  [CH.   VII. 

son.  The  father  died  shortly  afterwards,  before  any  money 
was  raised,  having  by  his  will  made  a  general  devise  of  all 
his  real  estate.  Sir  John  Leach,  in  holding  the  case  to  be 
within  the  Statute  of  Frauds,  and  that  parol  evidence  was 
inadmissible  to  prove  the  trust,  said :  "  There  is  here  no  pre- 
tence of  fraud,  nor  is  there  any  misapprehension  of  the  par- 
ties with  respect  to  the  effect  of  the  instruments.  It  was 
intended  that  the  father  should  by  legal  instruments  appear 
to  be  the  legal  owner  of  the  estate.  There  is  here  no  trust 
arising  or  resulting  by  the  implication  or  construction  of 
law. "  He  then  adverts  to  Cripps  v.  Jee  and  to  the  written 
evidence  in  that  case,  upon  the  strength  of  which  Lord 
Kenyon  had  admitted  the  auxiliary  parol  proof,  and  adds: 
"There  is  here  no  evidence  in  writing,  which  is  inconsistent 
with  the  fact  that  the  father  was  the  actual  purchaser  of  this 
estate ;  and  it  does  appear  to  me,  that  to  give  effect  to  the 
trust  here  would  be  in  truth  to  repeal  the  statute  of  frauds. " J 
It  would  seem  that  the  exception  established  in  Cripps  v. 
Jee,  in  favor  of  trusts  partly  manifested  by  writing,  is  difficult 
to  reconcile  with  the  plain  language  and  policy  of  the  statute 
requiring  the  trust  (that  is,  the  whole  trust)  to  appear  by 
written  evidence;  and  that  the  determination  in  Leman  v. 
Whitley,  not  to  admit  it  unless  clearly  applicable,  was  wise 
and  consistent.2 


1  Leman  v.  Whitley,  4  Russ.  426,  427.    See  Gallagher  v.  Mars,  50  Cal. 
23. 

2  Cook  v.  Barr,  44  N.  Y.  156.     But  see  Kingsbury  v.  Burnside,  58  111. 
336.    In  the  case  of  Jenkins  v.  Eldredge  (3  Story,  289),  Leman  v.  Whit- 
ley was  referred  to  and  disapproved,  as  improperly  excluding  parol  evi- 
dence in  cases  of  trusts,  and  Mr.  Justice  Story  says  he  "  should  have  had 
great  difficulty  in  following  it,  even  if  there  were  no  authorities  which 
seemed  fairly  to  present  grounds  for  doubt,"  which  authorities  are  Lees 
».  Nuttall,  1  Russ.  &  M.  53;  Carter  v.  Palmer,  11  Bligh,  N.  R.  397;  and 
Morris  r.  Nixon,  1  How.  (U.  S.)  118.     With  the  greatest  submission,  it 
must  be  said  to  be  doubtful  whether  the  principle  laid  down  in  Leman  v. 
Whitley  has  been  denied  or  questioned  in  either  of  the  decisions  quoted. 
And  it  is  remarkable  that  any  qualification  of  that  principle  should  have 
been  intended,  no  reference  being  made  to  Leman  v.  Whitley  in  either  of 


CH.   VII.]  EXPRESS   TRUSTS.  129 

§  112.   When  we  come  to  that  part  of  our  subject  which 
relates  to  contracts,  it  will  be  seen  that  one  of  the  most  im- 

tlicni.  We  should  naturally  desire  to  see  those  decisions  placed  upon 
some  other  ground,  rather  than  conclude  (as  it  seems  we  must)  that  they 
establish  the  absolute  admissibility  of  parol  evidence  in  cases  of  trusts. 
The  two  first-mentioned  cases  were  mere  cases  of  an  agent  abusing  his 
agency  to  acquire  the  legal  title  contrary  to  the  intention  of  his  principal, 
such  as  have  been  before  referred  to,  and  are  always  excepted  from  the 
operation  of  the  statute  upon  the  ground  of  an  implied  trust,  ex  malejicio, 
in  favor  of  the  principal.  The  last  is  the  common  case  of  an  absolute 
deed  of  land,  proved  by  parol  to  have  been  actually  made  as  security  for 
a  loan  of  money ;  such  proof  in  that  particular  class  of  cases  being  allowed 
in  the  great  majority  of  equity  and  even  law  courts  of  our  country,  and 
upon  grounds  quite  unconnected  with  any  construction  of  the  Statute  of 
Frauds.  Mr.  Justice  Story,  in  his  Equity  Jurisprudence  (§  1199,  note  2), 
refers  to  Leman  v.  Whitley  as  a  case  which  stands  upon  the  extreme 
boundary  of  the  law  as  to  the  inadmissibility  of  parol  evidence  in  cases  of 
resulting  trusts,  and  his  condemnation  of  the  case  in  his  decision  in  Jenkins 
v.  Eldredge  is  apparently  pronounced  under  the  same  impression  that  it 
was  a  case  of  a  resulting  trust.  But  Sir  John  Leach  expressly  says  in  his 
opinion  that  it  is  not  a  case  of  a  resulting  trust,  but  of  parol  evidence 
offered  to  prove  an  express  trust  against  the  written  documents  in  the 
case.  From  this  and  other  remarks  of  Mr.  Justice  Story,  it  must  be  in- 
ferred that  the  intent  of  the  decision  in  Leman  v.  Whitley  was  in  some 
measure  misapprehended  by  him.  Jenkins  v.  Eldredge  is  a  case  itself 
which  in  all  its  bearings  is  highly  interesting  in  relation  to  the  whole  sub- 
ject of  trusts  as  affected  by  the  statute,  and  as  it  has  been  several  times 
referred  to  in  preceding  pages,  an  abstract  of  its  facts  and  the  points 
decided  is  here  presented.  Jenkins  purchased  a  piece  of  land  of  Deblois 
for  $20.000,  with  a  view  to  build  on  it  for  speculation.  Being  unable  to 
comply  with  the  conditions  of  sale,  he  agreed  with  Deblois  that  her  war- 
ranty deed  conveying  the  premises  to  him  should,  on  the  execution  of  the 
agreement  and  the  payment  of  §1,000  to  Deblois  by  Jenkins,  be  deposited 
with  one  Philips  in  escrow  to  be  delivered  to  Jenkins  if  he  should,  before 
a  certain  day,  pay  Deblois  85,042.50,  and  execute  a  note  to  her  for 
$15,127  payable  in  five  years,  and  a  mortgage  of  the  premises  to  secure 
the  payment  of  the  note  and  taxes;  otherwise  the  contract  of  sale  to  be 
null  and  void,  and  the  $1,000  forfeited  to  Deblois.  Jenkins  paid  the 
81,000,  and  took  possession  of  the  land,  and  made  excavations  and  com- 
menced building  upon  it,  expending,  as  his  bill  alleged,  about  $15,000. 
His  means  being  exhausted,  he  was  unable  to  pay  the  $5,000  on  the  day 
stipulated,  and  Deblois,  pressing  for  payment,  threatened  to  sell  the  prem- 
ises at  auction.  Jenkins  applied  for  and  obtained  an  injunction,  and  a 
decree  giving  him  about  one  year  more  in  which  to  perform  the  contract, 
but  he  failed  finally  to  do  it,  and  his  bill  was  dismissed.  In  the  interven- 

9 


130  STATUTE   OF  FRAUDS.  [CH.   VII. 

portant  questions  to  be  settled  is,  whether  in  the  memorandum 
of  the  contract  the  consideration  is  required  to  be  expressed. 

ing  year,  Jenkins  applied  to  Eldredge  for  assistance  in  raising  money  to 
complete  his  enterprise ;  and  it  was  agreed  between  them  that  Eldredge 
should  take  a  conveyance  of  the  premises  from  Deblois,  which  was  ac- 
cordingly done  after  the  dismissal  of  the  bill,  and  Jenkins  executed  a 
release  to  Eldredge  by  which  he  admitted  iu  terms  that  he  had  "  no  legal 
or  equitable  right  in  or  to  the  same."  From  that  time  forward  Eldredge 
continued  to  be  ostensibly,  and,  so  far  as  the  second  title  was  concerned, 
the  sole  and  exclusive  owner  of  the  legal  and  equitable  estate  in  the 
premises.  Jenkins  was  subsequently  employed  superintending  the  erec- 
tion of  the  building.  The  necessary  moneys  were  advanced  chiefly  by 
Eldredge,  but  in  part,  as  it  appeared,  by  Jenkins  himself.  The  original 
intention  of  the  parties  was  shown  by  parol  evidence  to  be,  that  the  whole 
legal  and  equitable  estate  should  be  in  Eldredge,  to  enable  him  to  raise 
money  on  it  to  complete  building  and  discharge  the  encumbrances. 
Eldredge  admitted  that  he  had  promised  to  make  a  deed  of  trust  and 
place  it  among  his  papers,  to  provide  for  the  contingency  of  his  death,  but 
denied  that  he  ever  made  such  a  deed,  or  that  he  ever  intended  to  fetter 
his  legal  and  equitable  estate  in  the  premises.  There  was  parol  evidence 
that  it  was  part  of  the  original  bargain  that  this  declaration  of  trust  should 
be  made  and  preserved  by  Eldredge.  It  was  contended  on  the  part  of  the 
plaintiff  that  the  case  was  taken  out  of  the  statute:  1.  Because  it  was  a 
resulting  trust.  2.  Because  it  was  a  case  of  agency.  3.  Because  Eldredge 
had  been  guilty  of  fraud  in  his  conduct  and  operations.  4.  Because  the 
plaintiff  had  done  acts  of  part  performance,  and  could  not  now  be  rein- 
stated in  his  former  position  without  a  decree  for  the  specific  execution  of 
the  trust.  Judge  Story's  opinion  was  that  the  case  was  not  to  be  consid- 
ered as  one  standing  purely  or  singly  upon  either  of  these  grounds,  but 
as  embracing  ingredients  of  all  of  them,  and  he  examines  the  case  in  each 
view.  Upon  the  first  ground,  namely,  that  Jenkins  had  a  resulting  trust  in 
the  estate,  he  says,  p.  287,  that  "  the  plaintiff  had  expended  a  large  sum  of 
money  on  the  premises;  that  Deblois  never  could  have  conveyed  the  same 
to  Eldredge,  without  the  plaintiff's  express  solicitation  and  consent;  and 
that  Eldredge  was  in  no  just  sense  a  purchaser  for  his  own  sole  account, 
giving  a  full  value  for  the  premises,  but  bought  with  a  full  knowledge  of 
the  enhanced  value  by  the  expenditures  of  the  plaintiff,  and  for  the  pur- 
pose of  giving  the  benefit  of  such  expenditures  as  a  resulting  trust  between 
the  plaintiff  and  himself  in  the  premises.  Tn  this  respect,  it  approaches 
very  nearly  to  the  case  of  a  joint  purchase,  where  each  purchaser  is  to  have 
an  interest  in  the  purchase,  in  proportion  to  his  advances.  Xow  in  such 
cases,  parol  evidence  is  clearly  admissible  to  establish  the  trust,  as  well  as 
to  rebut,  control,  or  vary  it.  It  appears  to  me,  that  it  may  well  be  treated 
as  a  mixed  case;  quoad  the  plaintiff,  as  a  resulting  trust  pro  tanto,  —  and 
quoad  Eldredge,  as  a  trust  pro  lanto  for  his  liabilities,  expenditures,  and 


CH.   VII.]  EXPRESS   TRUSTS.  131 

It  may  be  sufficient  to  remark,  in  reference  to  the  writing 
required  by  the  seventh  section  in  cases  of  trusts,  that  all  the 

compensation."  He  proceeds,  p.  289 :  "  In  the  next  place,  as  to  the  agency. 
It  appears  to  me,  that  here  a  confidential  relation  of  principal  and  agent 
did  exist ;  and  that  being  once  shown,  it  disables  the  party  from  insisting 
upon  the  objection,  that  the  trust  is  void,  as  being  by  parol.  The  very 
confidential  relation  of  principal  and  agent  has  been  treated  as,  for  this 
purpose,  a  case  sui  generis.  It  is  deemed  a  fraud  for  an  agent  to  avail 
himself  of  his  confidential  relation  to  drive  a  bargain,  or  create  an  interest 
adverse  to  that  of  his  principal  in  the  transaction ;  and  that  fraud  creates 
a  trust,  even  when  the  agency  itself  may  be,  nay,  must  be  proved  only  by 
parol.  ...  In  the  next  place,  as  to  the  asserted  fraud.  If,  as  the  argu- 
ment of  the  plaintiff  supposes,  Eldredge  originally  engaged  in  the  under- 
taking with  a  meditated  design  to  mislead  the  confidence  of  the  plaintiff, 
and,  by  practising  upon  his  credulity  and  want  of  caution,  to  get  the  title 
to  the  property  into  his  own  hands,  and  then  to  convert  it  into  the  means 
of  oppressively  using  it  for  his  own  advantage  and  interest,  I  should  have 
no  doubt  that  the  case  would  be  out  of  the  reach  of  the  Statute  of  Frauds  ; 
for  the  rule  in  equity  always  has  been,  that  the  statute  is  not  to  be  allowed 
as  a  protection  of  fraud,  or  as  the  means  of  seducing  the  unwary  into  false 
confidence,  whereby  their  intentions  are  thwarted  or  their  interests  are 
betrayed."  The  learned  judge  here  refers  to  Montacute  v.  Maxwell 
(1  P.  Wms.  618-620),  and  to  the  opinion  of  Lord  Chancellor  Parker  there 
expressed,  that  "  in  cases  of  fraud,  equity  should  relieve,  even  against  the 
words  of  the  statute;  .  .  .  but  where  there  is  no  fraud,  only  relying  upon 
the  honour,  word,  or  promise  of  the  defendant,  the  statute  making  those 
promises  void,  equity  will  not  interfere."  He  dissents  from  that  proposi- 
tion, even  as  applied  to  cases  of  contracts  in  consideration  of  marriage,  and 
then  proceeds  as  follows:  "  I  doubt  the  whole  foundation  of  the  doctrine, 
as  not  distinguishable  from  other  cases  which  courts  of  equity  are  accus- 
tomed to  extract  from  the  grasp  of  the  Statute  of  Frauds.  It  is  not,  how- 
ever, necessary  to  consider,  what  should  be  the  true  rule  in  such  a  case; 
the  present  is  not  one  of  that  nature,  but  stands  upon  very  different 
grounds.  I  think,  moreover,  that  there  is  one  ingredient  in  the  present 
case,  which  gives  it  a  marked  character,  which  is  often  relied  on  in  cases 
of  agreements  on  marriage,  that  Eldredge  did  agree  to  reduce  the  trust  to 
writing,  and  to  keep  a  private  memorandum  thereof  in  his  own  possession, 
as  evidence,  in  case  of  his  death  or  other  accident.  I  do  not  accede  to  the 
statement,  that  this  was  a  mere  subsequent  promise,  long  after  the  execu- 
tion of  the  conveyances,  as  his  answer  imports;  but  it  was  a  part  of  his 
original  agreement,  and  upon  the  faith  of  which  the  arrangement  was 
completed.  He  never  did  comply  with  that  part  of  the  agreement.  He 
admits,  that  he  never  made  any  such  memorandum.  If  he  had  made  one, 
it  might  have  swept  away  the  whole  of  his  present  defence.  I  should  not 
incline,  however,  to  impute  to  Eldredge  any  such  original  premeditated 


132  STATUTE   OF  FRAUDS.  [CH.   VII. 

reasons  in  favor  of  requiring  the  express  statement  of  the  con- 
sideration under  the  fourth  section  seem  to  hold  good  in  rela- 
tion to  the  other.  There  are  two  cases  found  in  which  this 
question  has  been  passed  upon,  and  in  which  it  was  decided 
that  the  consideration  need  not  be  expressed.  One  of  them, 

intention  of  fraud  as  the  argument  of  the  plaintiff  supposes,  unless  driven 
to  it  by  the  most  cogent  circumstances  of  necessity.  And  it  does  not  seem 
to  me  necessary,  in  this  case,  to  go  to  such  a  length.  In  my  judgment, 
the  result  is  the  same,  although  the  original  design  of  Eldredge  was  per- 
fectly fair  and  honorable,  if  he  has  since  deviated  from  his  duty,  and 
attempted  to  absolve  himself  from  the  obligations  of  the  trust,  such  as  he 
knew  the  plaintiff  believed  it  to  be,  and  constantly  acted  upon;  because, 
in  point  of  law,  it  would  be  a  breach  of  trust,  involving  a  constructive 
fraud,  such  as  a  court  of  equity  ought  to  relieve.  ...  In  the  next  place, 
as  to  the  ground  of  a  part-performance  on  the  part  of  the  plaintiff.  From 
what  has  been  already  suggested,  there  seems  to  me  strong  ground  to  sup- 
port this  suggestion.  The  plaintiff  did,  at  the  time  of  the  conveyance  to 
Eldredge,  surrender  up  his  present  rights,  or  just  expectations,  under  the 
contract  with  Deblois;  he  suffered  his  equity  to  expire,  and  he  agreed  to 
give  up  to  Eldredge  all  claims  which  he  might  have  to  the  premises ;  and 
consented  to  a  direct  conveyance  thereof  to  Eldredge.  He  did  more;  he 
surrendered  up  all  remuneration  for  his  past  advances  and  services;  and 
also  all  remuneration  for  his  future  services,  except  so  far  as  ultimately, 
after  satisfying  all  other  claims,  there  might  remain  a  surplus  of  value  of 
the  property  to  indemnify  him.  It  has  been  suggested,  that  he  had,  at  the 
time,  no  claim  upon  Deblois  for  those  advances,  or  services,  or  improve- 
ment of  the  property.  I  doubt,  if,  in  equity,  that  doctrine  is  maintainable, 
if  the  value  in  the  hands  of  Deblois  had  been  greatly  enhanced  thereby. 
But  upon  this,  to  which  allusion  has  been  before  made,  I  do  not  dwell. 
But  I  do  put  it,  that  none  of  these  acts  would  have  been  done-,  and,  above 
all,  the  release  to  Eldredge  by  the  plaintiff  would  never  have  been  exe- 
cuted, but  upon  the  faith  that  the  trust  was  to  exist  for  the  plaintiff's 
benefit,  and  the  release  was  a  part  execution  of  the  agreement  between 
him  and  Eldredge.  And  here  I  cannot  but  remark,  that  the  very  excep- 
tion in  the  deed  of  Deblois  to  Eldredge  (a  most  fit  and  proper  exception, 
under  the  circumstances,  and  upon  which  the  release  was  designed  to 
operate)  '  excepting  any  claim  or  demand  made  by,  through,  or  on 
account  of  Joseph  Jenkins,  and  also  excepting  any  claim  or  demand  aris- 
ing out  of  any  contract  made  by  or  with  said  Jenkins,'  —  shows  clearly 
that  all  the  parties  understood  that  Jenkins  then  had  or  claimed  some 
right  or  title  in  the  premises,  and  that  the  extinguishment  of  it  was 
essential  to  the  security  of  purchasers.  So  that,  upon  the  ground  ot 
part-performance,  there  is  much  in  the  case  to  take  the  case  out  of  the 
reach  of  the  statute." 


CH.   VII.]  EXPRESS   TRUSTS.  133 

however,  was  in  Massachusetts,  where  it  had  been  settled, 
for  their  own  courts,  that  even  the  fourth  section  does  not 
require  the  consideration  to  appear  in  the  memorandum,  and 
the  other  was  upon  an  instrument  under  seal,  a  case  excepted, 
even  in  England,  from  the  application  of  the  general  rule.1 

§  113.  It  should  also  be  observed,  before  passing  from  this 
branch  of  our  subject,  that  the  principles  upon  which  courts 
of  equity,  under  peculiar  circumstances,  decree  the  specific 
execution  of  verbal  contracts,  notwithstanding  the  Statute  of 
Frauds,  comprehend  cases  of  trust  resting  in  parol.2  It  is 
not,  however,  deemed  worth  while  to  anticipate  here  the  dis- 
cussion of  any  part  of  the  important  subject  of  the  enforce- 
ment in  equity  of  obligations  affected  by  the  statute,  that 
being  reserved  for  special  examination  hereafter.3 

1  Arms  v.  Ashley,  4  Pick.  71 ;  Fisher  v.  Fields,  10  Johns.  (N.  Y.)  495. 

2  Jenkins  w.  Eldredge,  ante,  §  111  n. ;  Robson  v.  Harwell,  6  Ga.  589. 
•  Post,  Chap.  XIX. 


PART  III. 

OF  CONTRACTS. 


OF  CONTRACTS, 

AS   AFFECTED   BY    THE    FOURTH    AND    SEVENTEENTH   SECTIONS   OF    THE 
STATUTE    OF    FRAUDS. 

SECTION  4.  No  action  shall  be  brought  whereby  to  charge  any  executor 
or  administrator  upon  any  special  promise,  to  answer  damages  out  of  his 
own  estate;  2,  or  whereby  to  charge  the  defendant  upon  any  special 
promise  to  answer  for  the  debt,  default,  or  miscarriages  of  another  person; 
3,  or  to  charge  any  person  upon  any  agreement  made  upon  consideration 
of  marriage ;  4,  or  upon  any  contract  or  sale  of  lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concerning  them;  5,  or  upon  any  agree- 
ment that  is  not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof ;  6,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  by  some  person  thereunto 
by  him  lawfully  authorized. 

SECTION  17.  No  contract  for  the  sale  of  any  goods,  wares,  and  mer- 
chandises for  the  price  of  £10  sterling,  or  upwards,  shall  be  allowed  to  be 
good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind  the  bargain,  or  in 
part-payment,  or  that  some  note  or  memorandum  in  writing  of  the  said 
bargain  be  made  and  signed  by  the  parties  to  be  charged  by  such  contract, 
or  their  agents  thereunto  lawfully  authorized. 


CH.   VIII.]  VERBAL  CONTRACTS,  HOW  FAB   VALID.  137 


CHAPTER  VIII. 

VERBAL  CONTRACTS,  HOW  FAR  VALID. 

§  114.  WE  come  now  to  consider  the  Statute  of  Frauds  in 
its  application  to  contracts ;  a  branch  of  the  subject  of  supe- 
rior importance,  and  upon  which  the  decisions  of  the  courts 
of  both  countries  have  been  very  numerous,  presenting  a  great 
variety  of  questions  of  acknowledged  difficulty.  The  method 
proposed  for  the  discussion  of  it  is  that  suggested  by  the  very 
arrangement  of  the  sections  above  quoted  from  the  English 
statute,  and  it  is  to  examine,  First,  How  far  the  statute  affects 
verbal  contracts ;  Secondly,  What  are  the  contracts  embraced 
by  it;  and,  Thirdly,  What  are  the  formalities  which  it 
requires  in  the  making  of  such  contracts ;  or,  more  briefly, 
its  operation,  its  subject-matter,  and  its  requirements.  The 
first  of  these  divisions  will  form  the  subject  of  the  present 
and  the  succeeding  chapter. 

§  115.  At  the  outset,  we  note  the  difference  in  phraseology 
between  the  fourth  and  seventeenth  sections,  in  this,  that  the 
former  says  "  no  action  shall  be  brought "  upon  the  contract, 
and  the  latter  says  the  contract  shall  not  be  "  allowed  to  be 
good."  There  seems  to  be  no  reason  to  attribute  to  the 
latter  phraseology  any  force,  or  to  draw  from  it  any  infer- 
ences, different  from  those  which  attend  the  construction  of 
the  former.  "  Allowed  to  be  good  "  appears  to  mean,  con- 
sidered good  for  the  purposes  of  recovery  upon  it ; l  and  the 
remaining  portions  of  the  two  sections  in  question  being  very 
similar,  and  the  policy  of  the  two  being  very  clearly  the 
same,  we  should  not  be  justified  in  laying  much  stress  upon 

1  Townsend  v.  Hargraves,  118  Mass.  325,  334. 


138  STATUTE   OF   FKAUDS.  [CH.   VIII. 

the  change  of  phrase.  The  whole  statute  is  undeniably  put 
together  most  irregularly  and  loosely.  Many  of  our  States, 
in  adopting  the  substance  of  it,  have  disregarded  the  differ- 
ence alluded  to,  and  put  the  sales  of  goods  into  the  same 
section  with  other  contracts,  extending  to  them  a  common 
provision,  that  no  action  shall  be  brought,  etc. 

§  115  a.  The  operation,  then,  which  the  statute  has  upon 
a  contract  covered  by  it,  is  that  no  enforcement  of  the  con- 
tract can  be  had,  while  the  requirements  of  the  statute 
remain  unsatisfied,  if  the  party  against  whom  enforcement  is 
sought  choose  to  insist  upon  this  defence ;  the  statute  does 
not  make  the  contract  illegal;  a  contract  which  was  legal 
and  actionable  before  the  statute  is  legal  since  and  notwith- 
standing the  statute,  and  is  also  actionable  or  enforceable 
if  the  making  of  the  contract  be  followed  by  compliance 
with  the  requirements  of  the  statute.1  Compliance  with 
the  requirements  of  the  statute  does  not  constitute  the  con- 
tract; the  statute  presupposes  an  existing  lawful  contract, 
the  enforcement  of  which  is  suspended  till  the  statute  is 
satisfied. 

§  116.  Where  the  contract  has  been  in  fact  completely  exe- 
cuted on  both  sides,  the  rights,  duties,  and  obligations  of  the 
parties  resulting  from  such  performance  stand  unaffected  by 
the  statute.2  An  apt  illustration  of  this  familiar  doctrine  is 

1  In  previous  editions  of  this  treatise,  the  operation  of  the  statute  has 
been  defined,  as  the  mere  prescription  of  a  rule  of  evidence.     It  is  still 
believed  that  this  view  is  the  true  one,  and  that  the  cases  which  are  incon- 
sistent with  it  rest  upon  uncertain  ground.     But  it  is  perhaps  better  to 
avoid,  as  far  as  may  be,  prejudging  open  questions  in  introductory  defi- 
nitions.    The  statement  in  the  present  text  will  be  found  to  be  as  pre- 
cise as  the  condition  of  the  law  will  warrant.     Since  the  foregoing  was 
written,  it  has  been  confirmed  by  Lord  Blackburn  in  an  opinion  delivered 
in  Maddison  v.  Alderson,  L.  R.  8  H.  L.  C.  467. 

2  Stone  v.  Dennison,  13  Pick.  (Mass.)  1 ;   Mushat  v.  Brevard,  4  Dev. 
(N.  C.)  73 ;  Ryan  v.  Tomlison,  39  Cal.  639  ;  Niland  v.  Murphy,  73  Wise. 
326;  Haussman  v.  Burnham,  59  Conn.   117;    Gordon  v.  Tweedy,  71  Ala. 
202;  Webster  v.  Le  Compte,  74  Md.  249  ;     Larsen  v.  Johnson,  78  Wise. 
300;  Baldock  v.  Atwood,  21  Oregon  73;  Bibb  v.  Allen,  149  U.  S.  481 ; 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR  VALID.  139 

afforded  by  the  case  of  a  verbal  agreement  for  a  lease  not 
exceeding  three  years,  followed  by  an  actual  verbal  demise 
accordingly;  here  no  action  would  lie  upon  the  agreement 
while  executory,  but  after  it  is  executed  by  the  creation  of 
a  tenancy  such  as  the  statute  allows  to  be  created  without 
writing,  both  parties  are  bound  by  the  terms  of  the  tenancy, 
and  neither  party  can  avail  himself  of  the  fact  that  the  agree- 
ment could  not,  in  the  first  instance,  have  been  enforced 
against  him. 1  The  same  rule  applies  when  goods  are  deliv- 
ered and  paid  for,  or  a  guarantor  has  paid,  as  he  agreed  to 
do,  upon  the  default  of  the  principal  debtor;  neither  party 
can  recover  what  money  he  has  paid  or  what  property  he  has 
delivered,  though  it  may  be  that  he  could  not  have  been 
compelled  at  law  to  pay  or  deliver;  still  less  can  the  prin- 
cipal debtor  for  whom  the  guarantor  has  paid,  or  any  third 
person  for  whom  another  has  purchased  goods,  avoid  the  just 
claim  of  the  guarantor  or  of  the  purchaser  for  reimburse- 
ment, on  the  ground  that  they  could  not  have  been  compelled 
at  law  to  make  the  payments  which  they  now  seek  to  have 
made  up  to  them.  So  with  all  cases  of  contracts  embraced 
by  the  statute.2  When  fully  executed  on  both  sides,  the 
positions  of  the  parties  are  fixed,  subject,  of  course,  to  the 
power  of  a  court  of  equity  to  afford  relief  in  cases  of  fraud 
and  mistake. 

§  117.  When  so  much  of  a  contract  as  would  bring  it  within 
the  Statute  of  Frauds  has  been  executed,  all  the  remaining 
stipulations  become  valid  and  enforceable,  and  the  parties  to 
the  contract  regain  all  the  rights  of  action  they  would  have 
had  at  common  law.  Thus  when,  in  pursuance  of  a  verbal 

Grippen  v.  Benham,  5  Wash.  589.  But  see  De  Moss  v.  Robinson  (Cooley, 
J.,  dissenting),  46  Mich.  62. 

»  Lord  Bolton  v.  Tomlin,  5  Ad.  &  E.  856. 

2  Crane  v.  Gough,  4  Md.  316;  Andrews  v.  Jones,  10  Ala.  400;  Craig 
v.  Vanpelt,  3  J.  J.  Marsh.  (Ky.)  489;  Watrous  v.  Chalker,  7  Conn.  224; 
Pawle  v.  Gunn,  4  Bing.  N.  C.  445 ;  Shaw  v.  Woodcock,  7  Barn.  &  C.  73; 
8.  c.  9  D.  &  R.  889;  Price  v.  Leyburn,  Gow,  109;  McCue  v.  Smith,  9 
Minn.  252 ;  Beal  v.  Brown,  13  Allen  (Mass.)  114. 


140  STATUTE   OF  FRAUDS.  [CH.   VIII. 

contract,  a  conveyance  or  lease  of  land  is  executed,  or  goods 
are  sold  and  delivered,  an  action  may  be  maintained  for  the 
breach  of  the  promise  to  pay  the  price,  or  of  any  of  the 
other  stipulations  of  the  contract ; 1  provided,  of  course,  they 
are  not  such  stipulations  as  the  statute  requires  to  be  in 
writing.2 

1  Morgan  v.  Griffith,  L.  R.   6  Exch.  70;    Angell  v.  Duke,  L.  R.  10 
Q.  B.  174;   Green  v.  Saddington,  7  El.  &  B.  503;   Lavery  ».  Turley,  6 
Hurlst.  &  N.  239 ;   Price  v.  Leyburn,  Gow,  109 ;   Souch  v.  Strawbridge, 
2  C.  B.  814,  per  Tindal,  C.  J. ;  Seago  v.  Deane,  4  Bing.  459;  Wetherbee 
v.  Potter,  99  Mass.  360;  Preble  v.  Baldwin,  6  Cush.  (Mass.)  549;  Brackett 
v.  Evans,  1  Cush.   (Mass.)  79 ;   Page  v.  Monks,  5  Gray  (Mass.)  492 ; 
Eastham  v.  Anderson,  119  Mass.  526;  Remington  v.  Palmer,  62  N.  Y.  31; 
Worden  v.  Sharp,  56  111.  104;  Allen  v.  Aguirre,  7  N.  Y.  543;   Jewell  ». 
Ricker,  68  Me.  377.  See  Bonner  v.  Campbell,  48  Pa.  St.  286 ;  Tripp  v. 
Bishop,  56  Pa.  St.  424;  Freed  v.  Richey,  115  Pa.  St.  361;  McCarthy  r. 
Pope,  52  Cal.   561;  Russell  v.   Berkstresser,    77   Mo.    417  ;    Walsh    v. 
Colclough,  6  U.   S.   Cir.  Ct.   App.   114,  56   Fed.   Rep.   778.      Hoyle  v. 
Bush,   14  Mo.   App.    408;    Huston   v.   Stewart,    64    Ind.    388;    Arnold 
v.  Stephenson,  79  Ind.  126;  Worley  v.  Sipe,  111  Ind.  238;  Huffy.  Hall, 
56  Mich.   456;   Toan   v.   Pline,   60   Mich.     385;   Bork   v.   Martin,    132 
N.  Y.  280;  Smart  v.   Smart,  24  Hun  N.  Y.)  127;  McGinnis  v.  Cook,  57 
Vt.  36;  Kirk  v.  Williams,  24  Fed.  Rep.  437;  Walker  v.  Shackelford,  49 
Ark.  503;  Galley  v.  Galley,  14  Neb.  174;  Watson  v.  Baker,  71  Texas  739; 
Lyman  v.  Lyman,  133  Mass.  414;  Haviland  v.  Sammis,  62  Conn.  44; 
Showalter  v.  McDonnell,  83  Texas  158.     A  delivery  of  the  deed  to  a 
third  party  in  escrow  is  held  not  a  delivery  to  the  purchaser  so  as  to 
hold  him  liable  to  action  for  the  price,  under  the  rule  stated  in  the 
text,  in  Cagger  v.  Lansing,  43  N.  Y.  550;  but  contra,  in  Negley  v.  Jeffers,  28 
Ohio  St.  90;  Kelsey  v.  McDonald,  76  Mich.  188;  Ducett  v.  Wolf,  81  Mich. 
311;  Waldron  v.  Laird,  65  Mich.  237.     A  tender  of  a  deed  of  land  under 
a  verbal  contract  is  not  sufficient  to  support  an  action  for  the  agreed 
price.     Hodges  ».  Green,  28  Vt.  358.     See  Ballard  v.  Bond,  32  Vt.  355; 
King  v.  Smith,  33  Vt.  22.     But  see  Walker  v.  Owen,  79  Mo.  563. 

2  Townsend  v.  Townsend,  6  Met.  (Mass.)  319;  Hibbard  ».  Whitney, 
13  Vt.  21;    Ballard  v.  Bond,  32  Vt.  355;  Root  v.  Burt,  118  Mass.  521; 
Reyman  v.  Mosher,  71  Ind.  596 ;  Nugent  w.  Teachout,  67  Mich.  571 ; 
Winters  ».  Cherry,  78  Mo.  344.     In  Michigan   the  decisions  upon  this 
point  seem  to  be  conflicting.     Whipple  v.  Parkes,  29  Mich.  369 ;  Liddle 
v.  Needham,  39  Mich.  147;  Waldron  v.  Laird,  65  Mich.  237;  Whiter. 
Cleaver,  75  Mich.  17.     Where  an  agreement  by  the  vendee  to  give  the 
vendor  a  pass-way  over  other  land  forms  a  part  of  the  consideration  for 
the  sale  and  conveyance  of  land,  and  the  vendee  is  placed  in  possession 
of  the  land  sold  and  conveyed,  and  the  grantor  is  placed  in  the  use  of 


CH.   VIII.]  VERBAL   CONTRACTS,    HOW   FAR   VALID.  .141 

§  117  a.  This  doctrine  is  commended  by  soundness  in 
principle,  and  has  in  its  favor  the  clear  weight  of  author- 
ity ;  but  there  are  cases  really  or  apparently  opposed  to  it, 
and  a  somewhat  extended  examination  of  these  will  be  use- 
ful. The  first  was  Cocking  v.  Ward,1  decided  in  the  Court 
of  Common  Pleas  in  1845.  The  plaintiff  occupied  certain 
premises  as  tenant  under  a  lease  having  several  years  to  run, 
and  the  defendant  agreed  orally  to  pay  him  ,£100  if  he  would 
give  up  the  rest  of  the  term,  and  get  the  landlord  to  accept 
the  defendant  as  tenant  in  his  place.  The  plaintiff  left  the 
premises  and  the  defendant  entered,  but  afterwards  refused 
to  pay  the  £100,  and  for  breach  of  his  agreement  to  pay  it 
the  suit  was  brought.  It  was  urged  in  argument  in  the 
plaintiff's  behalf  that,  since  the  stipulation  covered  by  the 
statute  had  been  performed,  the  promise  to  pay  was  action- 
able. This  was  denied  by  Tindal,  C.  J.,  who  delivered  the 
opinion  of  the  court ;  but  recovery  was  allowed  upon  a  sub- 
sequent oral  admission  by  the  defendant  that  he  owed  the 
money.  Waiving  the  question  whether  the  recovery  was 
rightly  so  allowed,2  it  is  to  be  observed  that  the  stipulations 
covered  by  the  statute  had  not  been  performed,  as  no  valid 
assignment  or  surrender  had  been  made,  though  this  point 
was  not  noticed  by  the  court.  Kelly  v.  Webster,3  seven 
years  later  in  the  same  court,  followed  Cocking  v.  Ward,  a 
brief  opinion  being  delivered  by  Maule,  J.  In  this  case,  also, 
the  agreement,  which  was  in  part  to  assign  a  lease,  was  not 


the  pass-way,  the  former  -will  not  be  allowed  to  prevent  the  latter  from 
using  the  pass-way,  upon  the  ground  that  the  contract  therefor  was 
within  the  Statute  of  Frauds,  and  a  court  of  equity  will  not  allow  the 
vendee  to  hold  the  land  and  at  the  same  time  refuse  to  pay  for  it.  Cham- 
pion r.  Munday,  85  Ky.  31. 

i  Cocking  ».  Ward,  1  C.  B.  858. 

9  See  Pulbrook  v.  Lawes,  1  Q.  B.  D.  290 ;  also  Hooker  v.  Knab,  26 
Wise.  511,  deciding  that  a  duty  arising  from  a  promise  covered  by 
the  statute  cannot  be  enforced  by  virtue  of  a  second  promise  also  covered 
by  the  statute. 

a  Kelly  v.  Webster,  12  C.  B.  283. 


142  STATUTE   OF  FRAUDS.  [CH.    VIH. 

executed  by  any  assignment  in  writing.  Smart  v.  Harding,1 
in  1855,  was  decided  in  the  same  way ;  but  there  was  in  this 
case,  also,  an  agreement  to  assign  an  interest,  not  sufficiently 
executed  by  a  written  assignment.  In  Hodgson  v.  Johnson,2 
in  the  Queen's  Bench,  it  was  again  argued  that  the  plaintiff 
could  recover  upon  the  executory  part  of  the  contract,  all  its 
stipulations  which  the  statute  covered  having  been  executed. 
Substantially  Lord  Campbell  admitted  such  to  be  the  rule  of 
law,  saying,  "Where  a  contract  consists  of  two  collateral 
agreements,  one  only  of  which  relates  to  an  interest  in  land, 
then  if  that  part  of  the  contract  has  been  executed,  the  fact 
of  the  whole  contract  not  being  in  writing  will  not  preclude 
an  action  on  the  other  part  founded  on  a  promise  to  be  per- 
formed after  such  execution. "  3  But  in  this  case,  also,  there 
had  not  in  fact  been  an  execution  of  all  that  part  of  the  con- 
tract which  fell  under  the  statute.  In  Morgan  v.  Griffith,4 
in  the  Exchequer,  a  valid  lease  had  been  delivered  and 
accepted  pursuant  to  an  oral  contract,  and  the  lessee  was 
allowed  to  recover  upon  a  stipulation  of  the  lessor  to  keep 
down  the  rabbits  on  the  demised  property.  Here  the  correct 
doctrine,  as  it  is  understood  to  be,  was  directly  affirmed.5 
In  Angell  v.  Duke,6  in  the  Queen's  Bench,  where  the  decla- 
ration alleged  a  parol  agreement  for  a  lease  to  be  given  to 
the  plaintiff,  and  for  repairs  to  be  made  and  more  furniture 
put  in  by  the  defendant,  and  that  the  lease  had  been  given, 
but  the  defendant  did  not  put  in  the  furniture,  and  the  plain- 
tiff sued  for  breach  of  this  last  stipulation,  there  was  a  de- 
murrer, which  admitted  the  giving  of  a  valid  lease;  and  the 

1  Smart  v.  Harding,  15  C.  B.  652. 

2  Hodgson  v.  Johnson,  El.  B.  &  E.  685.     See  this  case  remarked  upon 
as  to  another  point,  in  Pulbrook  v.  Lawes,  1  Q.  B.  D.  284. 

8  Green  v.  Saddington,  7  E.  &  B.  503,  cited  as  authority  for  the  propo- 
sition quoted,  was  decided  after  Cocking  v.  Ward,  and  professed  to  be 
distinguished  from  it.  Crompton,  J.,  did  not  concur. 

4  Morgan  v.  Griffith,  L.  R.  6  Exch  70. 

6  See  also  Mann  r.  Nunn,  43  L.  J.  C.  P.  241. 

8  Angell  v.  Duke,  L.  R.  10  Q.  B.  174. 


CH.    VIII.]  VERBAL   CONTRACTS,   HOW  FAR   VALID.  143 

plaintiff  recovered  upon  the  parol  agreements  to  repair  the 
premises  and  to  put  in  more  furniture.  The  opinions  go  upon 
the  ground  (doutbful  on  the  language  of  the  declaration)  that 
the  contract  was  unilateral,  the  taking  of  the  lease  being 
optional  with  the  defendant.  Cocking  v.  Ward  is  remarked 
upon  as  a  decision  of  little  weight ;  and  on  the  whole,  Angell  v. 
Duke  may  be  regarded  as  affirming  the  correct  doctrine.1  But 
in  a  contemporaneous  decision  in  the  Exchequer,2  although  a 
valid  lease  was  delivered,  it  was  still  held  that  this  did  not 
make  enforceable  an  agreement  to  pay  a  bonus.  The  doctrine 
of  Angell  v.  Duke  cannot  therefore  be  regarded  as  estab- 
lished in  the  English  courts. 

§  117  b.  And  in  this  country,  as  well  as  in  England, 
decisions  opposed  to  it  are  to  be  found.  In  Baldwin  v. 
Palmer,3  in  the  Court  of  Appeals  of  New  York,  the  defendant 
agreed  to  convey  to  the  plaintiff  certain  premises  free  from 
all  encumbrances,  for  a  certain  sum  of  money ;  the  plaintiff 
paid  his  money  and  took  his  deed,  but  shortly  afterwards  dis- 
covered an  unpaid  assessment  which  he  was  obliged  to  pay 
himself,  and  brought  this  action  to  recover.  His  action  was 
not  sustained,  the  court  holding  that  the  conveyance  of  the 
land  was  not  enough  to  take  the  rest  of  the  contract  out  of  the 
statute.  And  so  in  Dow  v.  Way,4  where  the  defendant  agreed 
to  sell  a  house  and  lot  to  the  plaintiff,  and  perform  certain 
labor  on  it,  for  $1,500;  and  plaintiff  paid  the  money  and 
defendant  conveyed  the  house,  but  afterwards  failed  to  per- 
form the  labor  as  agreed ;  and  the  plaintiff  brought  his  action 
for  such  breach ;  he  was  held  not  entitled  to  recover.  On  the 
other  hand,  in  the  case  of  Allen  v.  Aguirre,6in  the  New  York 

1  In  Mechelen  v.  Wallace,  7  Ad.  &  E.  49,  the  contract  had  never  been 
executed  by  giving  a  lease,  and  therefore  no  recovery  could  be  had  on  the 
other  parts  of  the  agreement.  But  see  Steemod's  Administrator  v.  Rail- 
road Co.,  27  W.  Va. 

a  Sanderson  v.  Graves,  L.  R.  10  Exch.  234. 

8  Baldwin  v.  Palmer,  10  N.  Y.  232.  See  Liddle  v.  Needham,  39 
Mich.  147. 

4  Dow  v.  Way,  64  Barb.  255. 

8  Allen  v.  Aguirre,  7  N.  Y.  543. 


144  STATUTE   OF   FRAUDS.  [CH.  VIII. 

Court  of  Appeals,  the  plaintiff,  who  bought  goods  from  the 
defendant  and  paid  for  them,  with  the  understanding  that  if 
certain  customs  duties  which  the  defendant  had  paid  upon  the 
goods  should  afterwards  be  remitted,  the  amount  should  be 
returned  to  the  plaintiff,  brought  action  on  the  contract  for 
the  amount  which  had  been  so  remitted,  and  his  action 
was  allowed.  And  in  the  case  of  Remington  v.  Palmer,1 
in  the  same  court,  upon  a  state  of  facts  not  substantially  dis- 
tinguishable from  those  in  Baldwin  v.  Palmer,  that  case, 
though  not  cited,  was  in  effect  overruled,  and  the  correct 
doctrine  was  affirmed. 

§  117  c.  A  question  similar  to  that  of  the  right  to  recover 
on  the  verbal  contract  for  breach  of  engagements  not  covered 
by  the  statute,  when  all  that  are  covered  by  it  have  been  per- 
formed, has  sometimes  arisen  in  cases  involving  the  enforce- 
ment of  contracts  under  which  one  party  has  performed,  but 
the  other  is  not,  by  the  terms  of  his  contract,  required  to  per- 
form till  after  the  expiration  of  a  year.  It  has  been  some- 
times held  that  the  party  who  has  performed  may  sue  at  once 
upon  the  contract.  But  as  the  cases  referred  to  turn  upon 
the  language  of  statutes  of  frauds  relating  to  contracts  not  to 
be  performed  within  a  year  from  the  making,  a  discussion 
of  them  will  be  reserved  till  that  provision  of  the  statute  is 
considered.2 

§  118.  Having  considered  the  case  of  complete  execution 
of  the  contract  by  both  parties,  and  the  case  of  complete  exe- 
cution by  both  parties  of  so  much  of  the  contract  as  is 
covered  by  the  statute,  we  have  now  to  consider  the  case 
of  complete  execution  of  so  much  of  the  contract  as  the 
statute  does  not  cover,  leaving  the  remainder  executory. 
Under  this  head,  the  general  rule  is  that  such  execution  by 
one  party  does  not  entitle  him  to  an  action  at  law  for  damages 
for  the  non-performince  by  the  other,3  although  in  certain 

1  Remington  v.  Palmer,  62  N.  Y.  31.     See  also  Supervisors  of  Sche- 
nectady  v.  McQueen,  15  Hun  551. 

2  Post,  §§  289.  et  seq. 

8  But  see  Smock  v.  Smock,  37  Mo.  App.  56. 


CH.    VIII.]  VERBAL   CONTRACTS,   HOW   FAR   VALID.  145 

cases  a  court  of  equity  will  decree  specific  execution  of  the 
agreement  on  such  grounds.1  A  party,  however,  who  has 
paid  money  in  fulfilment  of  a  verbal  contract  which  the  other 
refuses  or  becomes  unable  to  carry  out,  may  recover  it  in 
an  action  for  money  had  and  received ;  he  may  also  recover 
property  or  its  value,  delivered  in  the  same  way,  by  any 
suitable  proceeding;2  and  where  a  piece  of  property  is 
delivered  in  payment,  as  being  worth  a  certain  sum,  it  is 
not  in  the  power  of  the  defendant,  without  the  plaintiff's 
consent,  to  return  the  specific  things  received,  but  he  must 
refund  in  the  usual  mode  for  money  had  or  goods  sold.3 
In  like  manner,  one  who  has  rendered  services  in  execu- 
tion of  a  verbal  contract  which,  on  account  of  the  statute, 
cannot  be  enforced  against  the  other  party,  can  recover  the 


1  See  Chapter  XIX. 

2  Basford  v.  Pearson,  9  Allen  (Mass.)  387;  Kidder  v.  Hunt,  1  Pick. 
(Mass.)  328;  Seymour  v.  Bennet,  14  Mass.  266;  Greer  v.  Greer,  18  Me. 
16;  Kneeland  v.  Fuller,  51  Me.  518;  Lock  wood  v.  Barnes,  3  Hill  (N.  Y.) 
128 ;  Keeler  t.  Tatnell,  23  N.  J.  L.  62  ;  Rutan  v.  Hinchman,  30  N.  J.  L. 
255;  Gray  v.  Gray,  2  J.  J.  Marsh.  (Ky.)  21 ;  Barickraan  v.  Kuykendall, 
6  Blackf.  (Ind.)  21;  Allen  v.  Booker,  2  Stew.  (Ala.)  21;  Luey  v.  Bundy, 
9  N.  H.  298;  Keath  v.  Patton,  2  Stew.  (Ala.)  38;  Root  v.  Burt,  118  Mass. 
521;   Williams   v.  Bemis,  108  Mass.  91;  White  v.  Wieland,  109  Mass. 
291  ;  Parker  v.  Tainter,  123  Mass.  185;  Jellison  r.  Jordan,  69  Me.  373; 
Moody  v.   Smith,  70  N.  Y.  598;    Rosepaugh  v.  Vredenburgh,   16  Hun 
(N.  Y.)  60.     See  Baker  v.  Scott,  2  Thomp.  &  C.  (N.  Y.)  606  ;  Mannen  v. 
Bradherry,  81  Ky.  153;  Cade  v.  Davis,  96  N.  C.  139  ;  Bacon  v.  Parker, 
137  Mass.   309;  Whitaker  v.  Burrows,  71   Hun   (N.  Y.)  478;  Bedell  v. 
Tracy,  65  Vt.  494;    Parker  v.  Niggeman,  6  Mo.    App.  546;  Jarboe  v. 
Severin,   85  Ind.  496;    Johnson   r.  Krassin,   25  Minn.    117;    Pressnell 
v.  Lundin,  44  Minn.  551;  Day  v.  N.  Y.  Central  R.  R.,  22   Hun  (N.  Y.) 
416;  Segars  v.  Segars,  71  Me.  530;  Gifford  v.  Willard,  55  Vt.  36  ;   Welch 
v.  Darling,  59  Vt.  136;  Adams  v.  Cooty,  60  Vt.  395;  Nelson  ».  Shelby, 
Mfg.  &  Imp.  Co.,  96  Ala.  515 ;  Worth  v.  Patton,  5  Ind  App.  Ct.  272.     In 
Eaton  v.  Eaton,  35  N.  J.  L.  290,  the  rule  was  applied  in  a  case  of  money 
paid  in  pursuance  of  a  parol  trust.     See  also  Schroeder  v.  Loeber,  75  Md. 
195.     Davis  v.  Farr,  26  Vt.  592,  appears  to  be  opposed  to  the  rule  stated 
in  the  text. 

8  Hawley  v.  Moody,  24  Vt.  603.     See  Nugent  v.  Teachout,  67  Mich. 
571. 

10 


146  STATUTE   OF  FRAUDS.  [CH.   VIII. 

value  of  the  services  upon  a  quantum  meruit ; l  and  this  is 
true  when,  after  part  performance,  the  contract  is  broken  by 
the  plaintiff  refusing  to  go  on  and  complete  the  service ;.  for 
if  the  defendant  could  compel  him  to  do  so,  that  would  be  to 
enforce  the  special  contract.2 

§  118  a.  The  rule  that  where  one  person  pays  money  or 
performs  services  for  another  upon  a  contract  void  under  the 
Statute  of  Frauds,  he  may  recover  the  money  upon  a  count 
for  money  paid,  or  recover  for  the  services  upon  a  quantum 
meruit,  applies  only  to  cases  where  the  defendant  has  received 
and  holds  the  money  paid  or  the  benefit  of  the  services  ren- 
dered ;  it  does  not  apply  to  cases  of  money  paid  by  the  plain- 
tiff to  a  third  person  in  execution  of  a  verbal  contract  between 
the  plaintiff  and  defendant  such  as  by  the  Statute  of  Frauds 
must  be  in  writing.  Such  payment  is  not  a  payment  to  the 
defendant's  use  in  the  sense  of  the  rule.  It  is  a  payment  to 

i  Souch  v.  Strawbridge,  2  C.  B.  808;  King  v.  Brown,  2  Hill  (N.  Y.) 
485;  Burlingame  v.  Burlingame,  7  Cowen  (N.  Y.)  92;  Shute  v.  Dorr, 
5  Wend.  (N.  Y.)  204;  Hambell  v.  Hamilton,  3  Dana  (Ky.)  501 ;  Daven- 
port v.  Gentry,  9  B.  Mon.  (Ky.)  427;  Sims  v.  McEwen,  27  Ala.  184; 
King  v.  Welcome,  5  Gray  (Mass.)  41 ;  In  re  Kessler's  Estate,  59  N.  W. 
Rep.  (Wise.)  129;  Wonsettler  v.  Lee,  40  Kansas  367;  McCrowell  o. 
Bussou,  79  Va.  290;  Baker  Bros.  v.  Lanter,  68  Md.  64;  Cohen  v.  Stein, 
61  Wise.  508;  Ellis  v.  Cary,  74  Wise.  176;  Schoonover  v.  Vachon,  121 
Ind.  3;  Cadman  v.  Markle,  76  Mich.  448;  Moore  v.  Horse  Nail  Co.,  76 
Mich.  606;  Frazer  v.  Howe,  106  111.  563;  McElroy  v.  Ludlum,  32  N.  ,T.  Eq. 
828;  Buckingham  v.  Ludlum,  37  N.  J.  Eq.  137  ;  Lapham  v.  Osborne,  20 
Nevada  168;  Koch  ».  Williams,  82  Wise.  186  ;  Smith  v.  Lotton,  5  Ind. 
(App.  Ct.)  177.  See  Knowlman  r.  Bluett,  L.  R.  9  Exch.  307;  Kimmins 
w.  Oldham,  27  W.  Va.  258  ;  Terrell  v.  Frazier,  79  Ind.  473.  In  Brit- 
ain v.  Rossiter,  L.  R.  11  Q.  B  D.  123,  plaintiff  appears  to  have  sued  for 
breach  of  a  contract  of  employment,  not  for  the  value  of  his  services;  see 
Snelling  v.  Huntingfield,  1  C.  M.  R.  20,  which  Britain  v.  Rossiter  appar- 
ently follows. 

3  Williams  v.  Bemis,  108  Mass.  91;  King  v.  Welcome,  5  Gray  (Mass.) 
41.  Upon  a  state  of  facts  similar  to  that  in  this  last  case,  a  contrary 
decision  was  given  in  Mack  v.  Bragg,  30  Vt.  571 ;  but  the  reasoning  in 
King  17.  Welcome  seems  thorougaiy  convincing,  and  the  doctrine  ex- 
pounded there  to  be  the  better  one.  See  a  further  discussion  of  this, 
post,  §  122  a.  Salb  v.  Campbell,  65  Wise.  405;  Freeman  v.  Foss,  145 
Mass.  301;  Hartwell  v.  Young,  67  Hun  (N.  Y.)  472. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW   FAR   VALID.  147 

his  use,  only  if  he  chooses  to  abide  by  the  contract,  and  it  is 
his  right  to  refuse  to  do  that.  In  a  case  in  the  Supreme 
Court  of  the  United  States,1  where  the  verbal  agreement 
relied  upon  in  set-off  by  the  defendant,  was  that  the  defendant 
should  buy  certain  land  from  a  third  party  and  pay  for  it, 
and  should  then  convey  one-third  of  it  to  the  plaintiff  who 
should  pay  one-third  of  the  purchase-money,  and  the  defend- 
ant performed  by  buying  the  land  and  paying  for  it  and 
tendering  the  plaintiff  a  deed  of  one-third  of  it,  and,  against 
the  defence  of  the  Statute  of  Frauds,  contended  that  he  was 
entitled  to  recover  back  the  price  of  defendant's  share  as  for 
money  paid  to  the  plaintiff's  use,  the  defendant's  claim  in 
set-off  was  disallowed  because  of  the  Statute  of  Frauds.  The 
Court  say :  "  There  is  no  implied  contract  on  which  the  cross- 
action  can  rest,  for  the  law  implies  a  contract  only  to  do 
that  which  the  party  is  legally  bound  to  perform.  As  the 
express  contract  set  up  by  the  defendant  was  void  under  the 
statute,  the  plaintiff  was  not  bound  in  law  to  accept  the  deed 
tendered  him  by  the  defendant  or  pay  the  purchase-money. 
The  defendant  paid  no  money  to  or  for  the  plaintiff.  The 
money  paid  out  by  him  was  to  enable  him  to  perform  his 
contract  with  the  plaintiff.  He  paid  it  out  for  himself  and 
for  his  own  advantage.  The  plaintiff  has  received  neither 
the  money  nor  land  from  the  defendant.  Neither  reason  nor 
justice  dictate  that  he  should  pay  the  defendant  the  price  of 
the  land,  and  therefore  the  law  implies  no  provision  to  do 
so.  The  cross-action  cannot,  therefore,  be  sustained  on  any 
supposed  implied  promise  of  the  plaintiff. " 

§  119.  Where  one  party  has  entered  upon  land  under  a 
verbal  contract  for  the  purchase  of  it,  and  has  made  improve- 
ments on  the  land  which  enhance  its  value,  a  court  of  equity 
will  compel  the  other  party,  who  has  repudiated  the  contract 
or  become  unable  to  perform  it,  to  remunerate  the  former  for 
those  improvements.2  The  right  of  recovery  at  law,  on  the 

1  Dunphy  ».  Ryan,  116  U.  S.  491. 

2  Findley  v.  Wilson,  3  Litt.  (Ky.)  390;    Thompson  v.  Mason,  4  Bibb 
(Ky.)   195;  Bellamy  v.   Ragsdale,  14  B.  Mon.  (Ky.)   364;   Vaughan   v. 


148  STATUTE   OF   FKAUDS.  [CH.   VIII. 

other  hand,  for  expenditures  so  made  by  the  party  entering, 
seems  to  exist  only  where  the  expenditures  were  made  in 
pursuance  of  a  stipulation  in  the  contract;1  if  they  were 
made  without  any  express  stipulation  that  they  should  be 
made,  and  only  for  the  plaintiff's  benefit  and  in  reliance  upon 
the  defendant's  performing  his  engagement  to  convey  the 
estate,  the  plaintiff  has  no  recovery  at  law.2  In  all  cases 
where  the  plaintiff  has  been  put  in  possession,  whether  of 
land  or  of  any  other  property,  the  profits  he  has  derived  from 
the  use  and  enjoyment  of  it  in  the  mean  time  should  be 
deducted  from  the  sum  he  is  to  recover  for  his  expenditures 
made  on  the  faith  of  the  contract.3 

§  120.  It  has  been  determined  in  Tennessee,  that  the 
advance  of  money  upon  a  verbal  contract  for  land  creates  no 
lien  upon  the  land  itself  for  the  repayment  of  the  sum 


Cravens,  1  Head  (Tenn.)  108.  See  Masson  v.  Swan,  6  Tenn.  450  ;  Dow- 
ling  v.  McKenney,  124  Mass.  478.  See  also  on  this  subject,  Chap.  XIX., 
post.  But  if  a  bill  be  filed  for  the  specific  execution  of  an  agreement  for 
the  purchase  of  land,  alleged  to  be  evidenced  by  a  written  memorandum, 
and  the  allegation  be  not  sustained  by  the  proof,  the  plaintiff  cannot 
under  the  prayer  for  general  relief  obtain  compensation  for  improve- 
ments on  the  land.  Smith  v.  Smith,  1  Ired.  (N.  C.)  Eq.  83;  Treece  v. 
Treece,  5  B.  J.  Lea  (Tenn.)  221;  Powell  v.  Higley,  90  Ala.  103;  Deisher 
v.  Stein,  34  Kan.  39. 

1  Williams  ».  Bemis,  108  Mass.  91;  White  v.  Wieland,  109  Mass.  291; 
Gray  v.  Hill,  Ry.   &  M.  421,  per  Best,  C.  J. ;  Smith  ».  Smith,  4  Dutch. 
(N.  J.)  208;  Pulbrook  v.  Lawes,  1  Q.  B.  D.  284.     See  Rainer  v.  Huddle- 
ston,  4  Tenn.  223;  Wade  v.   Newbern,  77  N.  C.  460;  Wainwright  v. 
Talcott,  60  Conn.  43. 

2  Cook  v.  Doggett,  2  Allen  (Mass.)  439 ;  Gillet  v.  Maynard,  5  Johns. 
(N.  Y.)  85;  Shreve  v.  Grimes,  4  Litt.  (Ky.)  220;  Harden  v.  Hays,  9  Pa. 
St.   151;  Miller  v.   Tobie,  41   N.  H.   84;  Welsh  v.   Welsh,  5  Ohio,  425; 
Farnam  v.  Davis,  32  N.  H.  302 ;    Cocheco  Aqueduct  Association  v.  B.  & 
M.  R.  R.,  59  N.  H.  312.     See  Well  v.  Banister,  4  Mass.  514;  Kemble  v. 
Dresser,  1  Met.   (Mass.)  271 ;  Bacon  v.  Parker,  137  Mass.  309.     But  see 
Wiley  v.  Bradley,  60  Ind.  62. 

8  Richards  v.  Allen,  17  Me.  296 ;  Lockwood  v.  Barnes,  3  Hill  (N.  Y.) 
128;  Rucker  v.  Abell,  8  B.  Mon.  (Ky.)  566;  Shreve  v.  Grimes,  4  Litt. 
(Ky.)  220.  See  Dix  v.  Marcy,  116  Mass.  416  ;  Watkins  v.  Rush,  2  Lans. 
(N.  Y.)  234.  And  see  McCafferty  v.  Griswold,  99  Pa.  St.  270. 


CH.    VIII.]  VERBAL   CONTRACTS,   HOW   FAR  VALID.  149 

advanced,  and  that  a  court  of  chancery  is  not  authorized  to 
decree  a  sale  of  the  land  for  that  purpose. l  But  the  general 
rule  of  law  appears  to  be,  that  if  the  vendor  cannot  make  a 
title,  and  the  purchaser  has  paid  any  part  of  the  purchase- 
money,  he  has  a  lien  for  it  on  the  estate,  although  he  may 
have  taken  a  distinct  security  for  the  money  advanced ; 2  and 
it  would  seem  that  the  rule  should  equally  apply  where  the 
vendor,  though  able  to  make  a  title,  refuses  to  do  so.  It  has 
been,  it  is  true,  decided  that,  where  a  purchase  cannot  be 
enforced  on  account  of  its  illegality  by  statute,  there  is  no 
lien ;  for  such  a  lien  would,  to  that  extent,  be  giving  to  the 
purchaser  the  benefit  of  the  illegal  contract.3  But  it  may  be 
replied  that  the  contracts  we  are  now  considering  are  not 
made  illegal  by  the  Statute  of  Frauds,  and  it  will  be  seen 
hereafter  that  the  benefit  of  them  is  in  a  variety  of  ways 
given  to  the  parties,  notwithstanding  the  statute.  The 
decision  in  Tennessee  is  opposed  by  the  opinion  of  the  courts 
in  Kentucky,  where  in  one  case  it  is  declared  to  be  well-set- 
tled that  the  purchaser  has  a  lien  for  his  money  advanced  in 
payment  for  an  estate  which  he  cannot  keep,  as  well  as  for 
his  improvements  made  thereon  while  he  supposed  it  to  be 
his  own.4 

§  121.  Where  the  purchaser  under  a  verbal  contract  for 
land  has  been  put  in  possession,  and  has  made  payments  on 
account  of  the  price,  it  is  plain  that  he  cannot  recover  the 
money  without  surrendering  or  offering  to  surrender  the 
possession ; 6  nor  can  he  resist  a  suit  upon  his  promissory 
note  for  the  price,  upon  the  ground  of  a  failure  of  considera- 
tion, since  he  has  derived  and  continues  to  enjoy  an  essen- 
tial benefit  conferred  by  the  contract,  and  since  the  plaintiff 

1  McNew  0.  Toby,  6  Humph.  27. 

2  Sugden,  Vend.  &  P.  857;  Turner  v.  Marriott,  L.  R.  3  Eq.  744. 
8  Ewing  v.  Osbaldiston,  2  Myl.  &  C.  53. 

*  McCampbell  u.  McCampbell,  5  Litt.  92 ;  Rucker  v.  Abell,  8  B.  Mon. 
566. 

6  Abbott  v.  Draper,  4  Denio  (N.  Y.)  51 ;  Cope  v.  Williams,  4  Ala. 
362. 


150  STATUTE   OF  FRAUDS.  [CH.   VIII. 

has  placed  himself  in  a  condition  which  enables  the  defend- 
ant, upon  payment  of  the  purchase-money,  to  enforce  a  specific 
execution  of  the  agreement  in  a  court  of  equity.1  Where  the 
vendee  has  repudiated  the  contract,  and  holds  possession  of 
the  land,  not  by  force  of  the  contract,  but  by  permission  of 
the  vendor,  there  the  latter  cannot  recover  for  any  unpaid 
part  of  the  purchase-money.2 

§  122.  The  right  in  the  vendee  of  land  by  verbal  contract, 
to  recover  what  money  or  other  consideration  he  has  paid,  is 
clearly  confined  to  those  cases  where  the  vendor  has  refused 
or  become  unable  to  carry  out  the  contract,  the  plaintiff  him- 
self having  faithfully  performed  or  offered  to  perform  on  his 
part.3  This  rule  is  sometimes  said  to  rest  upon  the  ground 

1  Gillespie  v.  Battle,  15  Ala.  276;  Curnutt  v.   Roberts,  11  B.  Mon. 
(Ky.)  42;  Ott  v.  Garland,  7  Mo.  28  ;  McMurray's  Appeal,  101  Pa.  St.  421. 
But  see  Bates  v.  Terrell,  7  Ala.  129. 

2  Johnson  v.  Hanson,  6  Ala.  351. 

8  Hawley  v.  Moody,  24  Vt.  603;  Shaw  v.  Shaw,  6  Vt.  69;  Lockwood 
v.  Barnes,  3  Hill  (N.  Y.)  128;  Abbott  v.  Draper,  4  Denio  (N.  Y.)  51; 
Green  v.  Green,  9  Cowen  (N.  Y.)  45;  Coughlin  v.  Knowles,  7  Met. 
(Mass.)  57;  Dowdle  v.  Camp,  12  Johns.  (N.  Y.)  451;  Lane  v.  Shackford, 
5  N.  H.  130;  Richards  r.  Allen,  17  Me.  296;  Collier  v.  Coate,  17  Barb. 
(N.  Y.)  471 ;  Bedinger  v.  Whitamore,  2  J.  J.  Marsh.  (Ky.)  552 ;  Barick- 
man  ».  Kuykendall,  6  Black.  (Ind.)  21 ;  Sims  v.  Hutchins,  8  Sm.  &  M. 
(Miss.)  320;  Donaldson  v.  Waters,  30  Ala.  175;  Cobb  v.  Hall,  29  Vt. 
510;  Miller  v.  Tobie,  41  N.  H.  84;  Mitchell  v.  McNab,  1  Brad.  (111.)  297; 
Galway  v.  Shields,  66  Mo.  313 ;  Allis  v.  Read,  45  N.  Y.  142 ;  Galvin  c. 
Prentice,  45  N.  Y.  162 ;  Van  Valkenburgh  ».  Croffut,  15  Hun  (N.  Y.) 
147;  Green  v.  North  Carolina  R.  R.  Co.,  77  N.  C.  95;  Adams  v.  Smilie, 
50  Vt.  1 ;  Plummer  v.  Breckman,  55  Me.  105;  Wetherbee  ».  Potter,  99, 
Mass.  354;  Cook  v.  Doggett,  2  Allen  (Mass.)  439;  Day  v.  Wilson,  83 
Ind.  463;  Sennett  v.  Shehan,  27  Minn.  328;  Milligan  v.  Dick,  107  Pa. 
St.  259 ;  Hill  v.  Grosser,  59  N.  H.  513 ;  Flinn  v.  Barber,  64  Ala.  193 ; 
Venable  v.  Brown,  31  Ark.  564;  Syme  v.  Smith,  92  N.  C.  338;  McKinney 
v.  Harvey,  38  Minn.  18.  But  see  Hairston  v.  Jaudon,  42  Miss.  380;  Col- 
lins v.  Thayer,  74  111.  138 ;  Scott  v.  Bush,  26  Mich.  418 ;  Casson  v.  Roberts, 
31  Beav.  613.  The  last-named  case  was  practically  overruled  in  Thomas 
v.  Brown,  1  Q.  B.  D.  714.  If  the  vendor  meanwhile  die,  and  administra- 
tion is  taken  and  the  estate  represented  insolvent,  so  that  the  whole  estate 
has  to  be  reduced  to  cash,  as  of  the  day  of  the  death,  then  the  vendee  may 
come  in  under  the  commission  for  his  compensation.  Sutton  v.  Sutton,  13 
Vt.  71.  Where  a  portion  of  the  agreed  price  has  been  paid,  it  may  be  re- 


CH.   VIII.]  VERBAL  CONTRACTS,   HOW   FAR   VALID.  151 

that  the  vendor,  when  in  such  an  action,  merely  defends 
upon  the  verbal  contract,  and  that  this  is  not  prohibited  by 
the  statute.1  As  a  general  proposition,  however,  we  shall 
hereafter  see  that  a  verbal  contract  within  the  statute  cannot 
be  enforced  in  any  way,  directly  or  indirectly,  whether  by 
action  or  in  defence.2  And  it  does  not  seem  necessary  to 
impeach  that  proposition,  in  order  to  sustain  the  rule  in  ques- 
tion. In  such  cases  of  suit  by  the  vendee  to  recover  the  con- 
sideration paid,  it  has  been  suggested  that  the  contract  is 
substantially  executed  on  the  part  of  the  vendor,  he  being 
able  and  willing  to  perform  everything  which  in  conscience 
he  was  bound  to  perform,  and  the  vendee  never  having  put 
him  in  default  by  a  demand  for  title.3  But  another  and  better 
view,  taken  in  a  well-considered  decision  of  the  Supreme 
Court  of  New  York,  is  that  the  right  of  the  vendee  in  any 
case  to  recover  what  he  has  paid  stands  upon  the  ground  that 
the  vendor  has  received  and  holds  it  without  consideration, 
so  that  a  promise  to  repay  it  will  be  implied;  but  that  if  the 
vendor  is  able  and  willing  to  perform  on  his  part,  no  such 
want  or  failure  of  consideration  can  be  shown,  and  such 
promise  is  not  implied.4 

§  122  a.  Whether  this  rule  is  equally  applicable  to  every 
case  of  a  verbal  contract  within  the  Statute  of  Frauds,  where 
the  party  who  has  refused  to  carry  out  the  contract  brings 
his  action  to  recover  for  what  he  has  done  under  it,  is  a  ques- 
tion not  free  from  difficulty.  The  Supreme  Court  of  Con- 
covered  upon  the  vendor's  refusal  to  convey,  without  proving  a  tender 
of  the  rest,  an  averment  of  readiness  and  willingness  being  sufficient. 
Tucker  v.  Grover,  60  Wise.  233;  Nims  v.  Sherman,  43  Mich.  45;  Suttou 
c.  Rowley,  44  Mich.  112;  Weaver  v.  Aitcheson,  65  Mich.  285. 

1  Shaw  v.  Shaw,  6  Vt.  69 ;  Philbrook  v.  Belknap,  6  Vt.  383. 

2  See  post,  §§  131-136. 

8  Rhodes  r.  Storr,  7  Ala.  346;  Meredith  v.  Naish,  3  Stew.  (Ala.) 
207. 

4  Abbott ».-.  Draper,  4  Denio  51.  See  Collier  r.  Coates,  17  Barb.  471; 
Coughlin  v.  Knowles,  7  Met.  (Mass.)  57;  Browning  v.  Walbrun,  45  Mo. 
477;  Cameron  »>.  Austin,  65  Wise.  652;  Sennett  v.  Shehan,  11  Rep.  401. 
Also,  ante,  §  120. 


152  STATUTE   OF  FRAUDS.  [CH.  VIII. 

necticut,  in  a  case  where  the  plaintiff  by  oral  agreement 
bound  himself  to  serve  the  defendant  for  a  term  longer  than 
one  year,  for  a  consideration  to  be  paid  at  the  end  of  that 
time,  and,  having  repudiated  the  contract  and  quitted  his 
employer  at  the  end  of  six  months,  brought  his  action  to 
recover  the  value  of  the  services  so  rendered,  held  that  he 
could  recover,  and  that  the  defendant  could  not  set  up  the 
existing  verbal  agreement  to  defeat  his  claim.1  The  court 
does  not  notice  the  established  rule  prohibiting  the  recovery 
of  money  paid  for  land  where  the  vendor  is  willing  to  con- 
vey ;  and  perhaps  the  cases  may  be  thus  distinguished.  In 
the  case  of  the  suit  to  recover  the  purchase-money  of  the 
land,  all  that  remains  to  be  performed  is  required  of  the 
defendant,  and  he  may  waive  the  privilege,  afforded  by 
the  statute,  of  refusing  to  convey.  In  the  case  of  the  suit  to 
recover  for  partial  services  rendered,  the  defence  is  that  the 
plaintiff  is  bound  to  perform  additional  services ;  but  these 
services  the  plaintiff  may  refuse  to  perform,  as  his  contract 
to  that  effect  is  within  the  statute  and  not  binding  without 
writing.  In  the  former  case,  that  which  is  within  the  statute 
is  to  be  done  by  the  defendant,  and,  if  he  is  willing  to  do  it, 
the  plaintiff  cannot  force  him  to  stand  upon  the  statute.  In 

1  Comes  v.  Lamson,  16  Conn.  246.  See  Clark  v.  Terry,  25  Conn.  395; 
King  v.  Welcome,  5  Gray  (Mass.)  41.  But  see  Abbott  v.  Inskip,  29  Ohio 
St.  59.  In  the  case  of  Campbell  v.  Campbell,  65  Barb.  (N.  Y.)  639,  the  con- 
tract was  that  the  plaintiff  should  serve  the  defendant  till  defendant  died, 
in  consideration  of  a  conveyance  of  land,  to  be  then  made  to  the  plaintiff ; 
after  serving  some  time,  the  plaintiff  refused  to  serve  further,  and  sued 
for  the  value  of  the  past  service;  held,  that  the  defendant  being  ready  to 
perform  on  his  part,  the  plaintiff  could  not  prevail;  and  rightly,  because 
this  defence  did  not  force  upon  the  plaintiff  the  performance  of  a  contract 
covered  by  the  statute,  for  his  contract  was  not  such  (see  post,  §  134)  :  it 
was  a  case  under  the  common  rule  that  partial  payment,  in  consideration 
of  defendant's  contract,  cannot  be  recovered  while  the  defendant  is  willing 
to  perform  and  waive  his  statute  defence  (see  §  122  b).  But  see  Kriger 
v.  Leppel,  42  Minn.  6.  Where  the  failure  to  serve  out  the  term  was 
without  fault  of  either  party,  it  has  been  held  that  recovery  at  the  con- 
tract rate  might  be  had  for  the  portion  of  the  term  served.  La  Du  King 
Co.  v.  La  Du,  36  Minn.  473. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW   FAR  VALID.  153 

the  latter  case,  that  which  is  within  the  statute  is  to  be  done 
in  part  by  the  plaintiff,  and  to  force  him  to  do  it,  by  setting 
up  the  verbal  contract  as  a  bar  to  his  recovery  for  the  value 
of  services  rendered,  would  be  to  enforce  the  verbal  contract 
by  way  of  defence.  This  was  put  with  great  precision  in 
an  opinion  of  the  Supreme  Court  of  Massachusetts,  delivered 
by  Thomas,  J.,  "In  the  case  of  the  money  paid  upon  a  con- 
tract for  the  sale  of  land,  the  action  fails  because  no  failure 
is  shown  of  the  consideration  from  which  the  implied  prom- 
ise springs.  In  the  case  at  bar,  the  defence  fails  because 
the  contract  upon  which  the  defendant  relies  is  not  evidenced 
as  the  statute  requires  for  its  verification  and  enforcement."  l 
The  doctrine  of  the  supreme  court  of  Connecticut  and  that 
of  Massachusetts,  above  referred  to,  that  one  who  has  partly 
performed  a  contract  covering  more  than  a  year  of  time, 
may,  repudiating  the  unexecuted  part,  have  his  action  for 
the  worth  of  what  he  has  done,  has  also  been  recognized  in 
New  York,  by  the  Court  of  Appeals.  Land  was  conveyed 
in  consideration  of  the  grantee's  undertaking  to  give  to  the 
grantor  (a  railroad  company)  all  his  freight  business  for  a 
period  longer  than  a  year.  After  observing  the  contract  for 
some  time,  the  grantee  repudiated  it,  and  action  was  then 
brought  by  the  grantor  for  the  full  value  of  the  land.  In 
defence  to  this,  the  grantee  claimed  his  right  to  have  the 
value  of  his  observance  of  this  contract  for  the  time  he  had 
observed  it  deducted  from  the  value  of  the  land ;  and  this 
claim,  against  the  plaintiff's  objection  under  the  statute, 
was  allowed.2  When  we  compare  the  case  of  a  plaintiff 
who  has  conveyed  property  under  a  verbal  contract  of  sale, 
and  that  of  a  plaintiff  who  has  rendered  service,  there  is  an 
apparent  inconsistency  in  the  application  of  the  rule  we  are 
discussing.  If  the  latter  plaintiff  can  repudiate  his  contract 
to  perform  further  services,  and  recover  the  proved  value  of 

1  King  v.  Welcome,  5  Gray  45. 

2  Day  ».  N.  Y.  C.  &  H.  R.  R.  Co.,  51  N.  Y.  583.     And  see  Turnow  ». 
Hochstadter,  7  Hun  80. 


154  STATUTE   OF  FKAUDS.  [CH.   VIII 

what  he  has  rendered,  why  may  not  the  former  plaintiff 
repudiate  the  contract  to  receive  for  the  property  he  has  con- 
veyed a  certain  stipulated  price,  and  recover  its  proved 
value?  The  answer  appears  to  be  that  in  the  latter  case  the 
defendant  may  return  the  property,  while  in  the  former  he 
cannot  return  the  service,  but  only  its  money  equivalent. 

§  122  b.  Upon  the  same  principle  that  the  vendee  cannot 
recover  the  purchase-money  while  the  vendor  is  willing  to 
convey,  it  is  also  held  that  the  vendor  of  land  can  only 
enforce  the  vendee's  note  for  the  purchase-money  against 
him,  when  he  shows  his  own  ability  and  willingness  to  per- 
form.1 Indeed,  in  such  an  action  the  defence  must  be,  not 
upon  the  Statute  of  Frauds,  but  the  want  or  failure  of  con- 
sideration; and  this  defence  cannot  be  made  out  if  the 
plaintiff  shows  his  ability  and  willingness  to  convey  accord- 
ing to  the  bargain.2  But  the  admission  of  a  vendor  that  he 
has  no  title  may  furnish  a  good  ground  for  abandoning  the 
possession  and  rescinding  the  contract,  and,  it  would  seem, 
a  good  ground  for  defending  an  action  for  the  unpaid  pur- 
chase-money, or  for  an  action  to  recover  that  which  has  been 
paid.3 

§  123.  Courts  of  equity,  also,  refuse  to  extend  their  aid  to 
rescind  a  contract,  merely  because  it  is  verbal,  at  the  suit  of 
one  party,  where  the  other  party  is  not  in  default.4  And  a 
mere  violation  of  the  contract,  in  part,  by  a  vendee  who  has 
taken  possession  of  the  land  and  made  improvements  thereon 
and  paid  part  of  the  purchase-money,  thus  entitling  himself 

1  Rhodes  v.  Storr,  7  Ala.  346;  McGowan  v.  West,  7  Mo.  569. 

2  Edelin  v.   Clarkson,  3  B.  Mon.   (Ky.)  31,  approved  in  Gillespie  v. 
Battle,  15  Ala.  282.     See  also  Rhodes  v.  Storr,  7  Ala.  346;  and  King  v. 
Hanna,  9  B.  Mon.   (Ky.)  369;  Crutchfield  v.  Donathon,  49  Tex.  691; 
Schiermau  v.  Beckett,  88  Ind.  52. 

«  Gillespie  ».  Battle,  15  Ala.  276  ;  Barnes  v.  Wise,  3  T.  B.  Mon.  (Ky.) 
167. 

4  Barnes  v.  Wise,  3  T.  B.  Mon.  (Ky.)  167 ;  Rowland  v.  Carman,  1  J. 
J.  Marsh.  (Ky.)  76;  Nelson  v.  Forgey,  4  J.  J.  Marsh.  (Ky.)  569;  Man- 
ning v.  Franklin,  81  Cal.  205. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW   FAR  VALID.  155 

to  a  decree  in  equity  for  a  specific  execution  of  the  contract, 
will  not  justify  the  vendor,  even  at  law,  in  treating  the  con- 
tract as  void,  so  as  to  recover  for  the  use  and  occupation 
of  the  land;  in  such  a  case  his  remedy  sounds  entirely  in 
damages  for  the  violation.1 

§  124.  It  has  been  already  stated  that  where  all  engage- 
ments which  the  statute  covers  have  been  performed,  an 
action  lies  upon  the  special  contract  for  the  enforcement  of 
all  remaining  engagements,  including  the  payment  of  the 
stipulated  price  for  property  conveyed  or  services  rendered. 
On  the  other  hand,  where  the  engagements  covered  by  the 
statute  have  not  been  all  performed,  and  recovery  is  sought 
(under  such  conditions  as  justify  it)  of  the  value  of  property 
conveyed  or  services  rendered  in  pursuance  of  the  contract, 
such  recovery  must  be  upon  the  implied  promise  of  the 
defendant  to  pay  for  such  property  or  services,  as  held  or 
enjoyed  by  him  without  consideration.2  In  such  an  action, 
however,  evidence  of  the  special  contract  may  be  received 
for  purposes  other  than  that  of  its  direct  enforcement. 

§  125.  Thus,  where  there  was  a  parol  agreement  to  demise 
a  house  for  five  years,  and  leases  to  be  executed,  under  which 
the  party  entered  and  subsequently  refused  to  accept  a  lease, 
and  the  owner  brought  assumpsit  for  the  use  and  occupation, 
and  it  was  objected  that  the  parol  agreement  was  void  by  the 
Statute  of  Frauds,  evidence  of  the  agreement  was  held  admis- 
sible for  the  purpose  of  showing  that  the  defendant  went  into 
the  occupation  of  the  premises  by  the  permission  of  the  plain- 
tiff, thus  establishing  the  relation  of  landlord  and  tenant.3 

1  Smith  v.  Smith,  H  Vt.  440. 

3  Gray  v.  Hill,  Ry.  &  M.  420;  Marcy  v.  Marcy,  9  Allen  (Mass.)  8; 
Thomas  v.  Dickinson,  14  Barb.  (N.  Y.)  90;  Hollis  v.  Morris,  2  Harr. 
(Del.)  3;  Hill  v.  Hooper,  1  Gray  (Mass.)  131;  Ives  v.  Gilbert,  1  Root 
(Conn.)  89 ;  Shute  i».  Dorr,  5  Wend.  (N.  Y.)  204;  Hambell  v.  Hamilton, 
3  Dana  (Ky.)  501 ;  Ray  v.  Young,  13  Tex.  550 ;  McDowell  v.  Oyer,  21  Pa. 
St.  417;  Roberts  v.  Tunnell,  3  T.  B.  Mon.  (Ky.)  247. 

8  Little  v.  Martin,  3  Wend.  (N.  Y.)  219;  Whitney  v.  Cochran,  1  Scam, 
(HI.)  209.  See  Arnold  v.  Garst,  10  R.  I.  4. 


156  STATUTE   OF   FRAUDS.  [CH.   VIIL 

Here  the  existence  of  the  contract  was  proved  as  part  of 
the  res  gestce,  to  show  in  what  character  the  defendant  was 
in  possession;  not  to  hold  him  bound  by  the  terms  of  the 
contract. 

§  126.  Again,  while  the  plaintiff  in  an  action  on  the  im- 
plied promise  for  the  value  of  property  conveyed  or  services 
rendered  cannot  insist  upon  the  value  stipulated  in  the 
verbal  contract  itself,1  such  stipulation  may  be  evidence 
to  be  submitted  to  the  jury,2  and  in  the  absence  of  other 
evidence  may  be  decisive.3  The  ground  upon  which  such 
evidence  is  received  at  all  appears  to  be  that  it  furnishes  an 
admission  by  the  party  making  such  stipulation  as  to  his 
contemporaneous  judgment  of  the  value  of  the  subject  in 
dispute ;  the  question  upon  which  it  is  admitted  or  excluded 
being,  what  was  the  actual  value  of  the  services  rendered  or 
the  property  transferred  for  which  the  plaintiff  seeks  com- 
pensation, at  the  time  they  were  so  rendered  or  transferred ; 
not  what  was  their  value,  even  to  him,  at  a  different  time 
when  the  defendant's  obligation  under  the  special  contract 
matured ;  not  what  was  their  value  at  any  time  to  the  defend- 
ant as  manifested  by  what  he  had  agreed,  in  the  special  con- 
tract, to  do  or  give  for  them ;  —  and  this,  whether  the  value 

1  Earl  of  Falmouth  v.  Thomas,  1  Cromp.  &  M.  89 ;  Ellet  v.  Paxson, 
2  Watts  &  S.  (Pa.)  418 ;  Erben  v.  Lorillard,  19  N.  Y.  299,  explaining 
King  v.  Brown,  2  Hill  (N.  Y.)  485;  Montague  v.  Garnett,  3  Bush   (Ky.) 
297;  Sands  v.  Arthur,  84  Pa.  St.  479.     But  see  dictum  of  Chapman,  J., 
in  Basford  v.  Pearson,  9  Allen  (Mass.)  392. 

2  Ham  v.  Goodrich,  37  N.  H.  185;  Emery  v.  Smith,  46  N.  H.  151; 
Jennings  r.  McComb,  112  Pa.  St.  518. 

3  Nones  v.  Homer,  2  Hilt  (N.  Y.)  116.     In  McElroy  ».  Ludlum,  32 
N.  J.  Eq.  828,  the  Court  of  Appeals  of  New  Jersey  have  repudiated  the 
whole  doctrine ;  holding,  in  a  case  where,  for  services  which  had  been 
rendered,  the  agreement  was  to  pay  a  share  of  the  profits  to  be  earned  by 
a  business  concern  during  a  term  outrunning  one  year,  that  even  to 
receive  evidence  of  the  amount  of  such  profits  as  bearing  on  the  question 
of  the  quantum  meruit  for  the  services,  was  a  violation  of  the  policy  of 
the  Statute  of  Frauds,  and  rejecting  such  evidence  accordingly.      The 
opinion  reviews  the  authorities  upon  the  subject  and  discusses  them  fully 
and  ably. 


CH.   VIII.]  VEKBAL   CONTRACTS,   HOW   FAR  VALID.  157 

at  the  time  the  plaintiff  rendered  the  services  or  transferred 
the  property  be  greater  or  less  than  their  value  to  him  at 
the  time  when  the  defendant's  special  promise  matured,  or 
greater  or  less  than  their  value  to  the  defendant  as  manifested 
by  what  he  had  specially  agreed  to  do  or  pay  for  them.1 

§  127.  In  the  case  of  Kidder  v.  Hunt,  in  Massachusetts,  a 
dictum  in  an  earlier  case  in  the  same  State2  having  been 
relied  upon,  to  the  effect  that  where  an  English  court  of 
equity  would  decree  specific  performance,  the  common-law 
courts  which  had  no  equity  jurisdiction  (as  was  then  the  case 
in  Massachusetts)  would  give  damages,  it  was  overruled,  and 
the  court  said :  "  There  are  no  doubt  cases  proper  for  a  court 
of  chancery,  such  as  those  which  relate  to  the  execution  of 
trusts,  where  the  common  law  will  give  a  remedy  by  an 
action  for  damages;  and  perhaps  in  the  case  of  a  parol  con- 
tract respecting  land,  where  the  party  has  been  put  to 
expense  as  to  his  part  of  the  contract,  under  circumstances 
which  would  amount  to  fraud  by  the  other  party,  case  might 
lie  for  damages  for  the  fraud ; "  but  the  present  action  being 
brought  upon  the  contract  itself,  it  was  considered  that  it 
would  not  lie.3 

§  128.  Before  passing  from  the  consideration  of  the  rights 
and  liabilities  of  parties  after  execution  in  whole  or  in  part, 
to  which  the  previous  sections  of  this  chapter  have  been 
chiefly  devoted,  it  should  be  observed  that  to  plead  or  set  up 
such  execution  is  generally  the  privilege  of  the  party  from 
whom  it  has  proceeded,  and  that  it  cannot  in  any  way  avail 
his  adversary  or  any  third  party.4 

1  King  v.  Brown,  2  Hill  (N.  Y.)  485;  Erben  v.  Lorillard,  19  N.  Y.  299  ; 
Wra.  Butcher  Steel  Works  v.  Atkinson,  68  LI.  421 ;  Galvin   v.  Prentice, 
45  N.  Y.  162;  Williams  v.  Bemis,  108  Mass.  91 ;  Whipple  v.  Parkes,  29 
Mich.  369;  Scotten  i;.  Brown,  4  Harr.  (Del.)  324 ;  Hale  v.  Stuart,  76  Mo. 
20.     Qucere  as  to  Lisk  v.  Sherman,  25  Barb.  433,  and  Ham  v.  Goodrich, 
37  N.  H.  185. 

2  Boyd  v.  Stone,  11  Mass.  342. 

8  Kidder  v.  Hunt,  1  Pick.  328.  See  Dung  v.  Parker,  52  N.  Y.  494; 
Heilman  v.  Weinman,  139  Pa.  St.  143. 

4  Glenn  w.  Rogers,  3  Md.  312.     But  see  Barton  r.  Smith,  66  Iowa  75 
And  see  post,  Chap.  XX. 


158  STATUTE   OF  FKAUDS.  [CH.  VIII. 

§  129.  The  extent  to  which  courts  of  equity  recognize  ver- 
bal contracts  upon  which  actions  at  law  are  prohibited  by  the 
Statute  of  Frauds,  is  necessary  to  be  here  remarked.  It  is 
true  that  the  statute  is  correctly  held  to  be  as  binding  in 
equity  as  at  law,  and  such  a  contract  cannot  under  ordinary 
circumstances,  be  specifically  enforced,  any  more  than  the 
damages  for  a  violation  of  it  can  be  recovered  by  action. 
But,  at  the  same  time,  equity  pays  great  regard  to  the  moral 
obligation  growing  out  of  it.  We  have  already  seen  that 
a  court  of  equity  will  not  interfere  to  rescind  such  an  agree- 
ment at  the  suit  of  one  party,  when  the  other  is  not  in  default. 
And  while  it  is  not  accurate  to  say  that  the  verbal  agreement 
will  be  always  admitted  as  a  defence  in  those  courts,  since 
that  would  be  to  relieve  them  entirely  from  the  binding  power 
of  the  statute,  it  seems  to  be  clear  that  they  will  not  lend 
their  aid  to  enforce  and  perfect  a  legal  right  which  the  plain- 
tiff sets  up,  against  his  conscientious  duty  under  a  verbal  con- 
tract interposed  on  the  part  of  the  defence. 1  Thus,  where  an 
execution  creditor  verbally  agrees  with  his  debtor,  that  he 
will  buy  in  the  premises  at  the  sheriff's  sale,  and,  on  being 
repaid  the  amount  of  the  execution,  or  on  any  other  specified 
terms,  will  reconvey  to  the  debtor,  and  afterwards,  by  repre- 
senting those  facts  at  the  sale,  is  enabled  to  buy  at  a  great 
sacrifice,  a  court  of  equity  will  refuse  to  ratify  the  sale  at  his 
instance.2  And  again,  where  two  men  agreed  to  purchase 
certain  land  jointly,  and  one  of  them  took  the  deed  in  his 
own  name,  and  the  heirs  of  the  other  applied  for  an  order  for 
the  conveyance  of  a  moiety,  and  the  defendant  set  up  a  ver- 
bal agreement  between  himself  and  the  other  party  to  pay  a 
certain  sum  of  money  and  convey  to  him  a  certain  tract  of 
land  in  satisfaction  of  his  claim  in  the  joint  purchase,  which 
agreement  the  defendant  had  in  part  performed,  —  it  was 

1  Jarrett  v.  Johnson,  11  Grat.  (Va.)  327;  Story,  Eq.  Jur.  §  1522.    See 
Hughes  i'.  Hatchett,  55  Ala.  539. 

2  Rose  v.  Bates,  12  Mo.   30.     And  see  Moore  v.  Tisdale,  5  B.  Mon. 
(Ky.)  352,  and  Letcher  v.  Cosby,  2  A.  K.  Marsh.  (Ky.)  106. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR   VALID.  159 

admitted  that  the  latter  agreement,  though  it  could  not  be 
sued  upon  at  law,  might  be  a  legitimate  defence  to  the  claim 
which  the  plaintiff  would  otherwise  have  had  to  the  relief 
of  a  court  of  equity;  but  in  the  present  case,  the  terms  of 
the  agreement  not  being  clearly  shown,  the  defence  was  not 
allowed.1 

§  130.  Upon  similar  grounds,  and,  it  seems,  at  law  as  well 
as  in  equity,  if  a  conveyance  be  made  in  pursuance  of  a 
verbal  contract  for  the  sale  of  land,  it  will  be  good  against 
a  party  who  claims  under  an  intermediate  written  contract; 
in  such  a  case,  a  court  of  equity  will  of  course  refuse  the 
latter  party  a  conveyance.2  Some  of  the  cases  appear  to  say 
that  the  rule  prevails  only  where  the  complainant  took  his 
written  engagement  with  notice  of  the  defendant's  prior 
rights,  but  this  can  hardly  be  so,  on  principle.  The  true 
ground  of  the  rule  is  well  stated  by  the  Supreme  Court  of 
Kentucky :  "  The  vendor  may  avoid  it  [the  verbal  contract] 
by  pleading  or  relying  on  the  statute,  yet  he  is  left  at  liberty 
to  waive  his  right  to  the  defence  and  consummate  the  con- 
tract, and  cannot  be  deprived  of  his  election  to  do  so  by  a 
stranger.  Though  a  vendor  is  not  legally  bound  to  fulfil  his 

1  Nichols  v.  Nichols,  1  A.  K.  Marsh.  (Ky.)  166.  Probably,  in  this 
case,  the  purchase-money  for  the  land  in  question  was  all  paid  by  the  de- 
fendant himself,  as  otherwise  the  heirs  could  have  obtained  a  conveyance 
to  the  extent  of  the  share  paid  by  their  ancestor,  on  the  ground  of  a  result- 
ing trust.  The  statute  will  not  protect  one  who  is  equitably  bound  to 
convey  land,  although  by  a  contract  on  which  no  action  could  be  main- 
tained against  him  by  his  vendee,  in  representing  the  title  of  the  vendor 
to  be  good,  and  thereby  inducing  others  to  purchase  from  him.  In  such 
case,  he  will  be  compelled  to  convey  to  the  second  vendee,  not  by  obliga- 
tion of  his  contract  with  the  first,  but  on  account  of  the  fraud  practised 
on  the  second.  Springle  v.  Morrison,  3  Litt.  (Ky.)  52.  See,  upon  this 
subject,  Thompson  v.  Mason,  4  Bibb  (Ky.)  195,  where  it  is  intimated, 
that  it  would  make  no  difference  as  to  the  availability  of  a  verbal  contract 
to  rebut  a  complainant's  equity,  though  it  might  have  been  previously 
in  suit  in  a  court  of  equity,  and  refused  to  be  enforced  on  the  ground  of 
the  Statute  of  Frauds. 

2  Dawson  v.  Ellis,  1  Jac.  &  W.  524  -,  Jackson  v.  Bull,  2  Caines  (N.  Y.) 
Cas.  301,  per  Kent,  J.;  Lucas  v.  Mitchell,  8  A.  K.  Marsh.  (Ky.)  244. 


160  STATUTE   OF  FRAUDS.  [CH.   VIII. 

contract  by  a  conveyance,  yet  a  moral  duty  rests  upon  him  to 
convey,  and  a  moral  right  in  the  vendee  to  ask  a  conveyance, 
and  if  the  former  choose  to  waive  his  legal  right,  in  obedience 
to  the  dictates  of  his  moral  duty,  by  conveying  or  furnishing 
written  evidence  of  his  obligation  to  convey,  a  stranger  to 
the  contract  has  no  right  to  complain,  nor  to  preclude  him 
from  this  discharge  of  his  moral  duty,  in  whole  or  in  part, 
upon  the  terms  of  the  original  parol  contract,  or  upon  terms 
which  he  may  choose  to  exact,  and  which  the  vendee  or  sub- 
purchaser  may  be  willing  to  concede."1 

§  131.  Although,  as  has  now  been  shown,  a  verbal  contract 
which  is  within  the  Statute  of  Frauds  may  for  some  pur- 
poses avail  a  defendant  in  equity,  or  in  an  action  to  recover 
a  quantum  meruit  for  property  or  labor  received  from  the 
plaintiff  in  pursuance  of  it,  still  the  clear  rule  of  law  is  that 
such  a  contract  cannot  be  made  the  ground  of  a  defence,  any 
more  than  of  a  demand;  the  obligation  of  the  plaintiff  to 
perform  it  is  no  more  available  to  the  defendant  in  the  former 
case,  than  the  obligation  of  the  defendant  to  perform  it  would 
be  to  the  plaintiff  in  the  latter  case.  Thus,  if  the  plaintiff 
had  a  verbal  contract  with  the  defendant  to  serve  him  for 
three  years,  and  should  bring  an  action  in  the  mean  time 
for  the  value  of  the  services  he  had  actually  rendered,  the 
defendant  could  not  protect  himself  by  setting  up  the  verbal 
contract  as  binding  upon  the  plaintiff,  though  its  terms  and 
stipulations  might  be  admissible  to  regulate  the  damages.2 

1  Clary  v.  Marshall,  5  B.  Mon.  269.     So  if  a  principal  purposes  to  sell 
land  to  a  person,  "  provided  his  agent  has  not  already  disposed  of  it,"  if 
it  turns  out  that  the  agent  had  previously  disposed  of  the  land  by  verbal 
contract,  the  principal  is  not  bound  to  plead  the  statute,  and  thereby  to 
vacate  the  contract  made  by  his  agent.     Jacob  v.  Smith,  5  J.  J.  Marsh. 
380.     See  also  Mitchell  r.  King,  77  111.  462.     Main  v.  Bosworth,  77  Wise. 
660;  Pickerell  v.  Morss,  97  111.  220;  Peck  v.  Williams,  113  Ind.  256.     In 
California,  where  the  code  provides  that  the  agreement  shall  be  "invalid," 
it  is  held  that  oral  agreements   are  enforceable  where  the  defence  of  the 
statute  is  not  taken.     Nunez  v.  Morgan,  77  Cal.  427. 

2  Comes  v.  Lamson,  16  Conn.  246;  Scotten  v.   Brown,  4  Harr.  (Del.) 
324;  King  v.  Welcome,  5  Gray  (Mass)  41;  Bernier  v.  Cabot  Mfg.  Co., 
71  Me.  506.     And  see  ante,  §§  122  a,  124. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR  VALID.  161 

Nor  can  a  sum  of  money  agreed  to  be  paid  in  a  contract 
affected  by  the  statute,  be  set  off  in  an  action  against  the 
party  entitled  to  it,  on  some  independent  cause.1  So  where 
a  father  in  consideration  of  the  marriage  of  his  daughter 
verbally  promised  to  pay  his  daughter  and  her  husband  a  cer- 
tain amount  of  money,  and  died  intestate,  and  the  daughter 
took  out  letters  of  administration,  it  was  held  that  she  could 
not  retain  the  debt  out  of  the  assets.2  And  where  there  was 
an  oral  agreement  by  the  husband  in  consideration  of  mar- 
riage, to  transfer  bonds  to  the  wife  when  the  marriage  should 
take  place,  the  husband's  performance  of  the  agreement  after 
marriage  was  held  to  be  voluntary  and  void  as  against 
creditors.3 

§  132.  How  far  a  subsequent  verbal  variation  of  a  contract 
once  put  in  writing  agreeably  to  the  requirement  of  the 
statute  will  be  admissible,  so  that  a  party  performing  accord- 
ing to  the  terms  of  the  contract  as  varied  can  defend  upon  the 
verbal  variation,  will  be  considered  in  another  part  of  this 
work.4  Such  a  case,  manifestly,  cannot  be  treated  purely  as 
a  defence  upon  a  verbal  contract. 

§  133.  It  is  well  established  that  if  an  action,  as  for  instance 
trespass,  be  brought  against  a  defendant  for  certain  acts  which 
were  done  by  him  in  pursuance  of  a  verbal  contract  between 
himself  and  the  plaintiff,  the  fact  of  the  contract  will  in  such 
case  afford  a  perfect  defence;  or,  more  correctly  speaking, 
the  defendant  may  set  up  the  license  of  the  plaintiff  to  do 
those  acts,  being  the  substance  of  the  right  which  the 
defendant  has,  such  a  license,  though  revocable  at  any  time, 
being  a  justification  for  any  act  done  under  it  of  a  temporary 


1  Payson  v.  West,  Walker  (Miss.)  515;  Sennett  ».  Johnson,  9  Pa.  St. 
335;    Lenheim  ».  Fay,  27  Mich.  70;  Persifull  v.  Boreing,  22  S.  W.  Rep. 
(Ky.)  440;  Dunphy  v.  Ryan,   116  U.  S.  495;    Ryan  v.  Dunphy,  4  Mon- 
tana 342;  Osborne  v.  Kimball,  41  Kan.  187. 

2  Field  v.  White,  L.  R.  29  Ch.  D.  358. 
8  Deshon  v.  Wood,  148  Mass.  132. 

4  See  post,  §§  409,  et  seq. 

11 


162  STATUTE   OF  FKAUDS.  [CH.   VIII. 

nature.1  But  it  seems  that  the  application  of  this  rule  must 
be  carefully  limited  to  cases  where  the  contract  is  set  up 
merely  as  a  justification,  as  distinguished  from  cases  where 
the  result  will  be  to  establish  the  contract  as  binding,  for  the 
purposes  of  a  contract,  upon  the  parties.  In  the  case  of  Car- 
rington  v.  Roots,  in  the  Court  of  Exchequer,  a  party  had 
purchased,  by  a  verbal  contract,  a  growing  crop  of  grass, 
with  liberty  to  go  on  the  close  wherein  it  grew,  for  the  pur- 
pose of  cutting  it  and  carrying  it  away ;  the  seller  seized  and 
impounded  the  horse  and  cart  which  the  purchaser  had 
brought  there  for  the  purpose  of  carrying  away  the  grass. 
In  an  action  of  trespass  by  the  purchaser,  the  seller  pleaded 
that  he  owned  the  close,  and  that  the  horse  and  cart  were 
wrongfully  encumbering  it,  and  doing  damage,  wherefore  he 
took  and  distrained  the  same,  etc.  ;  the  plaintiff  replied,  set- 
ting forth  the  contract,  and  that  he  was  there  with  his  horse 
and  cart  for  the  purpose  of  carrying  away  the  grass,  accord- 
ing to  the  contract.  It  was  admitted  that,  the  contract  being 
within  the  Statute  of  Frauds  as  for  an  interest  in  lands,  an 
action  to  charge  the  defendant  upon  it  could  not  be  sustained, 
without  evidence  in  writing;  but  it  was  argued  that  the 
plaintiff  had  a  right  to  avail  himself  of  it  for  any  collateral 
purpose,  as  in  this  case  to  repel  a  trespass  committed  by  the 
defendant.  It  was  held  that  the  action  would  not  lie.  Lord 
Abinger,  C.  B.,  states  the  distinction  with  great  clearness; 
he  says :  "  I  think  the  contract  cannot  be  available  as  a  con- 
tract at  all,  unless  an  action  can  be  brought  upon  it.  What 
is  done  under  the  contract  may  admit  of  apology  or  excuse, 
diverso  intuitu,  if  I  may  so  speak ;  as  where  under  a  contract 
by  parol,  the  party  is  put  in  possession,  that  possession  may 
be  set  up  as  an  excuse  for  a  trespass  alleged  to  have  been 
committed  by  him.  But  whenever  an  action  is  brought  on 
the  assumption  that  the  contract  is  good  in  law,  that  seems 
to  me  to  be  in  effect  an  action  on  the  contract.  If  the  whole 

1  See  ante,  §§  22,  et  seq.     As  applied  in  an  action  of  trover,  see  Moore 
v.  Aldrich,  25  Tex.  Supp.  276. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR   VALID.  163 

transaction  between  the  parties  were  set  forth  in  the  declara- 
tion, the  contract  would  form  part  of  it ;  and,  in  effect,  the 
plaintiff  now  says  that  the  defendant  ought  not  to  take  his 
cart,  because  it  was  lawfully  there  under  that  contract.  This 
is  a  collateral  and  incidental  mode  of  enforcing  the  contract, 
though  it  is  not  directly  sued  upon. "  "  It  would  be  a  differ- 
ent case  if  the  plaintiff  had  been  sued  by  the  defendant  in 
trespass ;  he  might  have  pleaded  a  license ;  but  though  a 
license  may  be  part  of  a  contract,  a  contract  is  more  than  a 
license.  The  agreement  might  have  been  available  in  answer 
to  a  trespass,  by  setting  up  a  license ;  not  setting  up  the  con- 
tract itself  as  a  contract,  but  only  showing  matter  of  excuse 
for  the  trespass.  That  appears  to  me  the  whole  extent  to  which 
the  plaintiff  could  avail  himself  of  the  contract.  I  am  there- 
fore of  opinion  that  the  replication  is  not  sustained,  and  that 
there  ought  to  be  a  nonsuit."  The  other  barons  concurred.1 
§  134.  This  case  affords  a  very  clear  exemplification  of  the 
general  rule,  which  may  be  here  reasserted,  that  no  action 
can  be  brought  to  charge  the  defendant  in  any  way  upon  his 
verbal  agreement  not  put  in  writing  according  to  the  statute.2 
And  it  may  be  briefly  illustrated  farther.  If  land  be  sold  at 
auction  or  otherwise,  and  no  memorandum  made,  and  the 
purchaser  refuse  to  take  it,  no  action  will  lie  against  him  to 
recover  the  loss  sustained  upon  a  second  sale  to  another  party ; 
this  could  be  done,  manifestly,  only  upon  the  ground  that  he 
was  originally  legally  liable  to  take  and  pay  for  the  land 
himself.3  Nor  will  a  discharge  from  performing  a  verbal 

i  Carrington  v.  Roots,  2  Mees.  &  W.  248.  In  this  case,  as  remarked 
by  Baron  Parke,  the  plaintiff  might  have  pleaded  a  license,  but  the  de- 
fendant would  have  replied  that  it  was  countermanded,  and  the  plaintiff 
could  not  have  succeeded  on  that  issue.  See  farther  Buck  v.  Pickwell, 
27  Vt.  157;  Whitcher  v.  Morey,  39  Vt.  459;  Taylor  v.  Wakefield,  6  El. 
&  B.  765;  Wheeler  v.  Frankenthal,  78  111.  124;  McGinnis  v.  Fernandes, 
126  111.  228. 

3  Finch  v.  Finch,  10  Ohio  St.  501 ;  Culligan  v.  Wingerter,  57  Mo.  241 ; 
Smith  v.  Tramel,  68  Iowa  488. 

8  Baker  v.  Jameson,  2  J.  J.  Marsh.  (Ky.)  547;  Carmack  v.  Masterson, 
3  Stew.  &  P.  (Ala.)  411.  But,  perhaps,  if  there  were  circumstances  of 


164  STATUTE   OF  FRAUDS.  [CH.  VIII. 

contract  within  the  statute  be  a  sufficient  consideration  to 
support  another  engagement.  No  action  whatever  could  have 
been  maintained  against  the  defendant  for  any  breach  of  that 
contract.  A  discharge  from  it,  therefore,  is  of  no  use  to 
him.1  So,  an  engagement  to  forfeit  a  certain  sum  of  money 
in  case  of  failing  to  perform  another  engagement  which, 
within  the  Statute  of  Frauds,  could  not  itself  be  enforced, 
cannot  be  enforced  by  the  party  to  whom  it  is  made.2  And 
where  the  only  consideration  of  a  promissory  note  was  an 
agreement  to  sell  shares  of  stock,  the  memorandum  of  which 
agreement  was  insufficient  under  the  Statute  of  Frauds,  it 
was  held  that  action  on  the  note  could  not  be  sustained.3 

§  135.  As  the  Statute  of  Frauds  affects  only  the  remedy 
upon  the  contract,  giving  the  party  sought  to  be  charged 
upon  it  a  defence  to  an  action  for  that  purpose,  if  the  require- 
ments of  the  statute  be  not  fulfilled,  it  is  obvious  that  he  may 
waive  such  protection;4  or  rather,  that,  except  as  he  under- 
takes to  avail  himself  of  such  protection,  the  contract  is  per- 
fectly good  against  him.  A  third  party  cannot,  in  a  case 
where  his  own  obligations  growing  out  of  the  existence  of 
the  contract  in  question  are  concerned,  deny  the  obligation 
of  the  contract  upon  the  party  who  was  to  be  charged  thereby, 
or  take  any  benefit  of  the  protection  which  such  party  could 
claim  in  an  action  brought  upon  it  against  himself.5  Thus, 

deceit  in  the  case,  the  plaintiff  might  recover  in  an  action  on  the  case  for 
the  deceit.  See  Kidder  v.  Hunt,  1  Pick.  (Mass.)  328. 

1  Xorth  v.  Forest,  15  Conn.  400;  Shuder  v.  Newby,  85  Tenn.  348.  But 
see  Stout  v.  Ennis,  28  Kansas  503. 

4  Goodrich  v.  Nickols,  2  Root  (Conn.)  498;  Rice  v.  Peet,  15  Johns. 
(N.  Y.)  503.  But  see  Couch  v.  Meeker,  2  Conn.  308. 

8  Cameron  v.  Tompkins,  72  Hun  (N.  Y.)  109. 

4  But  after  his  death  his  executor  or  administrator  may  not  waive  it. 

6  See  Chicago  Dock  Co.  c.  Kinzie,  49  111.  289;  Ames  v.  Jackson,  115 
Mass.  508;  Fowler  v.  Burget,  16  Ind.  341 ;  Brown  v.  Rawlings,  72  Ind. 
305 ;  Morrison  v.  Collier,  79  Ind.  417 ;  Dutch  v.  Boyd,  81  Ind.  146 ;  Dixon 
P.  Duke,  85  Ind.  434;  Sedgwick  v.  Tucker,  90  Ind.  271;  Royce  v.  Graham, 
91  Ind.  420;  Kelly  v.  Kendall,  118  111.  650;  Gordon  ».  Tweedy,  71  Ala. 
202;  Cooper  v.  Hornsby,  71  Ala.  62;  Welsh  v.  Coley,  82  Ala.  363;  Mew- 


CH.   VIII.]  VERBAL   CONTRACTS,    HOW  FAR   VALID.  165 

where  one  summoned  as  trustee  made  answer  that  a  debt  was 
due  from  him  to  the  defendant,  but  that  he  had  verbally 
promised,  and  considered  himself  bound  to  pay  a  debt  to  a 
greater  amount  due  from  the  defendant  to  a  third  person,  it 
was  held  that  he  was  not  obliged  to  set  up  the  Statute  of 
Frauds  and  avoid  this  promise ;  and  that  if  he  chose  to  recog- 
nize it,  he  was  not  chargeable  as  trustee. l  So,  where,  in  an 
action  by  the  plaintiffs  for  the  non-fulfilment  by  the  defendants 
of  a  contract  to  finish  certain  machinery  within  a  reasonable 
time,  it  was  averred  as  special  damage  that  the  plaintiffs  had 
thereby  been  prevented  from  fulfilling  a  contract  with  third 
parties  and  had  lost  the  profits  thereon,  it  was  held  that  such 
damages  could  be  recovered,  although  the  contract  which 
would  have  produced  the  profits,  could  not  have  been  enforced 
because  not  in  compliance  with  the  Statute  of  Frauds.2  And 
it  has  been  also  held  that  the  maker  of  a  verbal  guaranty  may 
pay  the  amount  and  recover  it  from  the  original  debtor ;  and 
may  pay  his  memorandum  check  for  the  amount  and  recover 
it  from  the  original  debtor,  although  the  latter,  after  its 
making,  forbade  its  payment.8  So  where  property  is  held 
by  defendant  subject  to  a  verbal  trust  for  a  third  party,  the 
defendant's  creditor  cannot  take  the  property  discharged  of 


burn's  Heirs  v.  Bass,  82  Ala.  622;  Rickards  v.  Cunningham,  10  Neb.  417; 
Duckett  v.  Pool,  33  S.  C.  238;  Lee  v.  Stowe,  57  Texas  444;  Old  National 
Bank  v.  Findley,  131  Tnd.  225;  Singer  v.  Carpenter,  125  111.  117;  Book  v. 
Justice  Mining  Co.,  58  Fed.  Rep.  106;  Bullion  &  Exchange  Bank  v.  Otto, 
59  Fed.  Rep.  256;  Savage  v.  Lee,  101  Ind.  514;  Hughes  v.  Lumsden,  8 
Brad.  (111.  App.  Ct.)  185;  Aultman  v.  Booth,  95  Mo.  383;  Holden  v. 
Starks,  159  Mass.  503;  Jackson  v.  Stanfield,  37  N.  E.  Rep.  (Tnd.)  14. 

1  Cahill  v.  Bigelow,  18  Pick.  (Mass.)  369;  Hall  v.  Soule,  11  Mich. 
494;  Godden  v.  Pierson,  42  Ala.  370;  Browning  v.  Parker,  17  R.  I.  183. 
See  also  Bohannon  v.  Pace,  6  Dana  (Ky.)  194 ;  Garrett  v .  Garrett,  27  Ala. 
687;  Huffman  t».  Ackley,  34  Mo.  277;  Houser  v.  Lament,  55  Pa.  St.  311; 
Cresswell  ».  McCaig,  1 1  Neb.  222. 

8  Waters  v.  Towers,  8  Exch.  401 ;  Sneed  v.  Bradley,  4  Sneed  (Tenn.) 
301 ;  Kratz  v.  Stocke,  42  Mo.  351. 

8  Beal  v.  Brown,  13  Allen  (Mass.)  114.  See  Ames  v.  Jackson,  115 
Mass.  508;  Simpson  v.  Hall,  47  Conn.  417. 


166  STATUTE   OF   FRAUDS.  [CH.   VIII. 

such  trust,  upon  the  ground  that,  as  between  the  immediate 
parties  to  it,  it  could  not  be  enforced.1 

§  135  a.  Certain  recent  decisions  in  the  State  of  New  York, 
bearing  upon  the  doctrine  that  a  verbal  contract  within  the 
Statute  of  Frauds  is  to  be  taken  as  binding  except  where  the 
party  contracting  seeks  the  benefit  of  the  statute,  require 
careful  examination.  The  first  of  these  was  the  case  of  Dung 
v.  Parker,2  where  one  representing  himself  as  agent  for  the 
letting  of  certain  premises  made  an  oral  contract  of  lease  to 
the  plaintiff,  who,  on  the  faith  of  it,  incurred  considerable 
expense  in  fixtures  for  the  premises  in  question ;  but  upon 
finding  out  afterward  that  the  other  had  no  authority  to  let 
the  premises,  the  plaintiff  sued  him  for  damages  growing  out 
of  his  false  representation.  The  defendant  relied  upon  the 
fact  that  his  agreement  for  the  lease  was  oral,  and  therefore 
that  even  had  he  been  authorized  to  make  it,  the  plaintiff 
could  not  have  enforced  it  or  recovered  for  its  breach,  and 
thus  might  in  any  event  have  lost  the  value  of  the  fixtures; 
and  this  position  was  sustained  by  the  Court  of  Appeals, 
which  founded  its  decision  upon  the  proposition  that  in  no 
case  would  an  agent,  falsely  representing  his  authority  to 
make  a  contract  on  behalf  of  another,  be  liable  either  in  con- 
tract or  tort,  unless  the  principal  would  have  been  bound  by 
the  contract  made,  had  the  agent  such  authority.  The  same 
doctrine  was  shortly  afterward  reiterated  in  the  case  of 
Baltzen  v.  Nicolay,3  which  presented  substantially  the  same 
features  as  the  former  case,  though  the  action  here  was 
brought  against  the  agent,  an  auctioneer,  for  damages  for 
breach  of  his  contract.  Three  of  the  court  dissented,  but 
without  delivering  opinions.  A  case,  however,  decided  in 
the  Supreme  Court  about  this  time,  though  citing  Dung  v. 
Parker  at  some  length,  and  not  in  terms  criticising  it,  seems 
in  substance  opposed  to  the  rule  governing  its  decision.  This 

1  Aicardi  v.  Craig,  42  Ala.  311 ;  Crawford  v.  Woods,  6  Bush  (Ky.)  200. 

2  Dung  v.  Parker,  52  N.  Y.  494. 

8  Baltzen  v.  Nicolay,  53  N.  Y.  467. 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW   FAR  VALID.  167 

case  is  Rice  v.  Manley,1  an  action  to  recover  damages  from 
one  who,  by  means  of  a  feigned  telegram  to  a  person  with 
whom  the  plaintiff  had  an  oral  contract  for  the  purchase  of 
some  cheese,  broke  off  the  sale,  and  bought  the  cheese  him- 
self. The  court  held  that  the  defendant  was  liable  to  pay  the 
plaintiff  for  the  loss  of  the  bargain  caused  by  the  former's 
fraud,  even  though  that  bargain  was  within  the  Statute  of 
Frauds;  and  they  cited  Benton  v.  Pratt,2  as  to  the  same 
effect,  and  being  the  doctrine  of  the  highest  court  of  the 
State.  It  will  be  observed  that  Rice  v.  Manley,  in  recogniz- 
ing the  oral  contract  as  an  existing  relation,  and  giving  the 
plaintiff  damages  for  the  fraudulent  representation  by  which 
he  was  deprived  of  the  benefit  of  it,  is  in  opposition  to  the 
reasoning,  if  not  to  the  decision,  of  Dung  v.  Parker;  and 
another  decision  in  the  Court  of  Appeals  later  than  any  of 
the  foregoing  seems  to  tend  in  the  same  direction.  This  is 
the  case  of  Mooney  v.  Elder,3  where  a  broker,  who  was  to 
receive  a  commission  upon  producing  a  customer  ready  and 
willing  to  buy  a  certain  estate,  made  an  oral  contract  with  a 
third  party  for  the  sale  of  the  premises,  and  sued  for  his 
commission.  It  was  held  that  he  could  recover  it,  since  it 
did  not  appear  that  payment  was  resisted  on  the  ground  that 
the  purchaser  had  not  made  a  written  contract,  nor  that  he 
would  fail  to  carry  out  his  oral  undertaking. 

§  135  b.  A  witness  may  be  convicted  of  perjury  in  falsely 
swearing  to  a  contract  within  the  statute.  It  was  so  held  in 
a  case  in  New  York,  where  the  defence  to  an  action  of  slan- 
der for  imputing  perjury  was,  that  the  false  swearing  alleged 
was  not  perjury,  the  evidence  being  to  set  up  a  contract 

1  Rice  v.  Manley,  2  Hun  492. 

a  Benton  ».  Pratt,  2  Wend.  385. 

8  Mooney  v.  Elder,  56  N.  Y.  238.  And  see  Kelly  v.  Phelps,  57  Wise. 
425.  Aliter  where  brokers'  commissions  are  sued  for  and  the  purchaser  does 
resist  and  set  up  the  Statute  of  Frauds.  Yeager  r.  Kelsey,  46  Minn.  402. 
Payment  for  advice  and  assistance  in  making  a  purchase  of  land  may  be 
enforced,  although,  for  want  of  writing,  the  contract  cannot  be  enforced. 
Wilson  v.  Morton,  85  Cal.  598. 


168  STATUTE   OF   FRAUDS.  [CH.   VIII. 

affected  by  the  statute,  and  therefore  immaterial.  But  the 
court  said  it  was  not  immaterial,  for  it  proved  the  promise ; 
though  it  was  perhaps  incompetent,  if  the  objection  had  been 
in  season.1  So,  also,  a  verbal  contract  for  hiring  for  a  year, 
to  commence  at  a  future  day,  will  be  sufficient  for  the  pur- 
pose of  acquiring  a  settlement.2  And  the  implication  that  a 
tenant  holding  over  holds  on  the  terms  of  the  old  lease  is 
destroyed  by  proof  of  a  new  contract  of  hiring,  essentially 
different  from  the  old  and  intended  to  displace  it,  although 
such  new  agreement  be  itself  not  actionable  because  not  in 
writing.3 

§  135  c.  The  rule  that  third  parties  cannot  set  up  the 
defence  of  the  statute  is  of  course  inapplicable  to  parties  in 
privity  with  the  original  promisor.4 

§  136.  Upon  the  same  principle,  namely,  that  the  Statute 
of  Frauds  presupposes  an  existing  lawful  contract,  and 
affects  only  the  remedy  for  its  violation,  it  is  held  that 
where  a  contract  within  the  statute  is,  by  the  laws  of  the 
country  where  it  is  made  and  to  be  executed,  valid  and 
enforceable,  still  no  action  can  be  maintained  upon  it  in  the 
courts  of  the  country  where  the  statute  prevails,  unless  its 
requirements  be  satisfied.5  Mr.  Justice  Story  on  several 
occasions  expressed  doubt  as  to  this  point,  but  on  none  of 
them  was  the  question  actually  presented  for  decision ; 6  and 

1  Howard  v.  Sexton,  4  N.  Y.  157.     And  see  Bartlett  v.  Pickersgill, 
1  Eden  415. 

2  Bracegirdle  v.  Heald,  1  Barn.  &  Aid.  722. 
8  Singer  Mfg.  Co.  v.  Sayre,  75  Ala.  270. 

4  Best  v.  Davis,  44  111.  App.  624. 

6  Leroux  v.  Brown,  12  C.  B.  801;  Downer  v.  Chesebrough,  36  Conn. 
39;  Kleeman  ».  Collins,  9  Bush  (Ky.)  460;  Turnow  v.  Hochstadter,  7 
Hun  (N.  Y.)  80.  See  Wilcox  Silver  Plate  Co.  v.  Green,  72  N.  Y.  18; 
Dacosta  v.  Davis,  23  N.  J.  L.  319;  Hunt  v.  Jones,  12  R.  I.  265;  Wilson  v. 
Miller,  42  111.  App.  Ct  332. 

6  Van  Reimsdyk  v.  Kane,  1  Gall.  630;  Smith  v.  Burnham,  3  Suran. 
435;  Low  v.  Andrews,  1  Story  38.  The  learned  judge  may  have  had  in 
his  mind  the  opinion  of  Boullenois  :  "  Ainsi  deux  particuliers  contractent 
ensemble  en  presence  de  temoins,  et  sans  ecrit,  dans  un  endroit  oil  pareilles 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR   VALID.  169 

in  an  opinion  delivered  by  Chapman,  C.  J.,  for  the  Supreme 
Court  of  Massachusetts,  the  rule  has  been  stated  in  opposi- 
tion to  that  given  above ;  but  here,  too,  the  question  was  not 
before  the  court.1  A  memorandum  made  subsequently  to 
the  breach  of  an  oral  contract  enables  the  party  aggrieved  to 
maintain  an  action  for  damages.2  And  where,  after  an  oral 
contract  of  sale  had  been  made,  so  much  of  the  statute  as 
applied  to  it  was  repealed,  the  contract  was  declared  to  be 
afterward  actionable.3  And  it  was  also  held  that  a  mortgage 
deed  made  by  a  bankrupt,  eighteen  days  only  before  his  peti- 
tion, but  in  pursuance  of  an  oral  agreement  made  more  than 
fifteen  months  before,  took  effect,  by  relation,  as  of  the  time 
when  the  agreement  was  made,  and  was  not  a  fraudulent 
preference.4 

conventions  forment  de  veri tables  engagemens,  et  a  raison  de  quoi  la 
preuve  par  temoins  est  admise  dans  cet  endroit  pour  quelque  somme  que 
ce  soit  meme  au  dessus  de  100  livres ;  ils  plaideut  ensuite  dans  un  lieu  ou 
cette  preuve  par  temoins  n'est  pas  admise ;  dans  cette  espece,  je  ne  trouve 
pas  de  difficulte  a  dire  qu'il  faudra  admettre  la  preuve  par  temoius, 
parceque  cette  preuve  appartient  ad  vinculum  obligations  et  solemnitatem." 
Perhaps  it  may  be  said  that  in  this  passage  the  distinction  is  not  entirely 
apprehended  between  the  making  of  a  valid  contract,  and  the  mode  of 
proving  it.  The  vinculum  et  solemnitas  are  certainly,  properly  speaking, 
elements  of  the  validity  of  the  contract.  It  appears  to  have  been  consid- 
ered by  the  Chief  Justice  in  Leroux  v.  Brown,  that  the  conclusion  would 
not  be  the  same  in  a  case  under  the  17th  section  relating  to  the  sales  of 
goods.  But  this  was  quite  unnecessary  to  the  question  before  the  court, 
and  the  weight  of  their  suggestion  is  counterbalanced  by  contrary  sugges- 
tions in  previous  cases.  See  Carrington  v.  Roots,  2  Mees.  &  W.  248  ; 
Reade  v.  Lamb,  6  Exch.  130.  The  distinction  does  not  appear  to  have 
ever  been  judicially  upheld,  and  is  certainly  not  supported  by  any  consid- 
erations of  difference  in  policy  between  the  two  sections.  See  9  Am. 
Law  Rev.  436,  444 ;  and  ante,  §  115,  and  note. 

1  Denny  v.  Williams,  5  Allen  1.     Miller  v.  Wilson,  146  111.  523,  and 
Cochran  v.  Ward,  5  Ind.  App.  89,  hold,  with  Denny  v.  Williams,  that  the 
Statute  of  Frauds  governing  the  contract  is  that  of  the  State  in  which  it 
is  to  be  executed. 

2  Bird  v.  Munroe,  67  Me.  337. 

»  Work  ».  Cowbick,  81  111.  317,  per  Dickey,  J. 

*  Burdick  v.  Jackson,  14  Hun  (N.  Y.)  488.     And  see  Lloyd's  Appeal, 
82  Pa.  St.  485;  Gardner  v.  Rowe,  2  Sim.  &  S.  316. 


170  STATUTE   OF  FKAUDS.  [CH.  VIII. 

§  137.  Where  a  contract  has  been,  in  obedience  to  the 
requirements  of  the  Statute  of  Frauds,  manifested  so  as  to 
give  a  right  of  action  for  its  violation,  such  right  may  be  kept 
alive  for  the  purposes  of  the  Statute  of  Limitations,  by  an 
oral  renewal  of  it,  infra  sex  annos,  so  far  as  the  statute  is 
concerned,  and  unless  the  particular  Statute  of  Limitations 
in  question  requires  such  renewal  to  be  in  writing.1  But  it 
has  been  held  that  a  statute  requiring  a  writing  for  renewal 
of  a  promise  barred  by  the  United  States  Bankrupt  Law 
applies  to  a  suit  instituted  after  the  enactment  of  the  law, 
but  based  on  a  verbal  promise  made  before  its  enactment.2 

§  137  a.  It  seems  that  where  the  violation  by  the  servant 
of  a  contract  for  service  is  made  punishable  under  a  criminal 
statute,  such  statute  should  be  held  not  to  apply,  unless  the 
contract  was  one  which  could  be  enforced  by  action  between 
the  parties  consistently  with  the  Statute  of  Frauds.3 

§  138.  The  summary  jurisdiction  of  courts  over  their  own 
officers  may  sometimes  afford  a  remedy  upon  a  verbal  con- 
tract, where  the  Statute  of  Frauds  would  prohibit  an  action 
upon  it.  Thus,  an  attorney's  undertaking  to  pay  his  client's 
debt  and  costs  in  an  action  has  been  enforced  on  motion  in 
the  court  of  which  he  is  an  attorney.* 

§  138  a.  Where  a  memorandum  of  the  contract  is  relied 
upon  as  satisfying  the  statute,  although  it  must  show  all  the 
material  stipulations  on  both  sides,  it  will  be  sufficient  if 
it  afford  evidence  of  the  promise  to  perform  them  by  the 
defendant  only ;  and  thus  a  letter,  distinctly  stating  the  con- 
tract, although  written  to  a  third  party,  or  although  in  terms 
repudiating  the  contract,  may  still  serve  as  a  memorandum 

1  Gibbons  v.  M'Casland,  1  Barn.  &  Aid.  690.  Moreover,  it  would  be 
sufficient  in  any  case  to  declare  upon  the  original  promise.  Leaper  ». 
Tatton,  16  East  420;  Upton  v.  Else,  12  Moore  303. 

8  Kingsley  v.  Cousins,  47  Me.  91. 

8  Banks  v.  Crossland,  L.  R.  10  Q.  B.  97. 

4  Evans  v.  Duncan,  1  Tyrw.  283;  Senior  v.  Butt,  Hil.  T.  1827,  K.  B., 
and  Payne  v.  Johnson,  there  cited;  Greave's  case.  1  Cromp.  &  J.  374, 
note  (a). 


CH.   VIII.]  VERBAL   CONTRACTS,   HOW  FAR  VALID.  171 

Within  the  statute,  because,  as  before  stated,  neither  party 
can  annul  the  contract,  although  neither  could  enforce  it.1 

§  138  I.  Where  a  verbal  contract  for  the  sale  of  a  horse  was 
made  on  Sunday,  and  no  satisfaction  of  the  statute  was  had 
until  Monday,  it  seems  to  have  been  considered  that  the  con- 
tract was  to  be  taken  as  not  made  till  the  Monday,  for  the 
purposes  of  the  law  prohibiting  business  contracts  on  Sun- 
day.2 This  opinion  was  not  necessary  to  the  decision  of  the 
case,  and  would  seem  to  be  untenable  on  principle.  If  the 
contract,  for  the  purposes  of  the  Sunday  laws,  be  regarded 
as  complete  when  it  is  verbally  made  (as  it  seems  that  it 
should  be),  it  follows  that  the  act  of  satisfying  the  Statute  of 
Frauds  is  not  the  making  nor  the  completing  of  the  contract, 
and  may  therefore  itself  take  place  on  Sunday,  and  have  full 
effect.3 

§  138  c.  The  proposition  that  the  Statute  of  Frauds  pre- 
supposes an  existing  lawful  contract  which,  except  for  the 
purpose  of  recovery  for  its  violation,  is  binding  upon  the 
parties,  finds  a  farther  illustration  in  the  decisions  that  a 
payment  made  without  appropriation  by  the  party  making  it 
may  be  appropriated  by  the  party  receiving  it  to  a  debt  due 
from  the  former  to  him  upon  a  contract  not  directly  action- 
able for  want  of  compliance  with  the  Statute  of  Frauds.4 

§  138  d.  In  conclusion  of  this  chapter,  we  will  inquire  into 
the  effect  of  the  making  of  the  verbal  contract,  considered  by 
itself,  and  considered  as  supplemented  by  satisfaction  of  the 
Statute  of  Frauds,  as  to  the  title  in  goods  sold,  both  between 
the  parties  and  those  claiming  under  them,  and  as  to  third 
persons. 

§  138  e.  The  mere  convention  or  agreement  of  the  parties 

1  See  post,  Chap.  XVIII. 

2  Bloxsome  v.  Williams,  3  Barn.  &  C.  232. 

8  The  reader  will  find  a  full  and  careful  discussion  of  these  questions 
in  the  article  of  the  American  Law  Review  referred  to  ante,  §§  115  a, 
note. 

4  Haynes  v.  Nice,  100  Mass.  327;  Murphy  t>.  Webber,  61  Me.  478; 
Mueller  w.  Wiebracht,  47  Mo.  468.  See  Wart  r.  Mann,  124  Mass.  586. 


172  STATUTE   OF  FKAUDS.  [CK.   VIII. 

to  that  effect  is  sufficient  at  common  law  to  pass  the  title  to 
goods  sold,  when  the  identical  goods  which  are  the  subject 
of  the  sale  are  ascertained,  and  are  capable  of  immediate 
delivery,  and  the  price  is  fixed :  neither  payment  of  the  price 
nor  actual  delivery  of  the  goods  being  necessary  to  pass  the 
title.1  Is  this  true  of  a  sale  of  goods  for  such  price  as  to  fall 
under  the  Statute  of  Frauds  ?  If  after  such  a  verbal  con- 
tract of  sale,  no  satisfaction  of  the  statute  being  ever  had, 
the  chattel  perish,  on  whom  does  the  loss  fall?  Or  if  the 
chattel  be  injured  by  the  negligence  or  wilfulness  of  the  seller 
in  whose  custody  it  remains,  is  he  liable  to  the  buyer  for  the 
injury?  In  such  cases,  it  would  seem,  theoretically,  that  the 
title  being  in  the  buyer,  the  loss  in  the  first  case  should  be 
his,  and  that  he  should  have,  in  the  second  case,  his  action 
for  damages ;  and  yet,  practically,  this  would  be  to  enforce 
against  the  buyer  and  the  seller  respectively  the  verbal  con- 
tract of  sale.2  No  case  has  been  found  reported  which  thus 
gives  to  one  party  as  against  the  other  the  practical  benefits 
of  the  passage  of  the  title  by  their  verbal  contract,  in  cases 
where  there  is  never  any  satisfaction  of  the  Statute  of 
Frauds.3  But  where  there  is  a  subsequent  satisfaction  of 

1  Clarke  v.  Spence,  4  Ad.  &  E.  448;  Townsend  v.  Hargraves,  118  Mass. 
332,  and  cases  cited. 

2  See  Carrington  t>.  Roots,  2  Mees.  &  W.  248,  discussed,  §  133,  ante. 

8  In  Goddard  v.  Binney,  115  Mass.  450,  there  was  a  verbal  contract  for 
a  buggy,  and  upon  the  ground  of  the  work  still  to  be  done  about  it  when 
the  contract  was  made,  the  court  held  that  it  was  not  a  contract  for  goods 
within  the  seventeenth  section  of  the  statute;  but  when  the  buggy  was 
finished  there  took  place  between  the  parties  what  the  court  considered  to 
amount  to  a  delivery  at  common  law,  sufficient  to  pass  the  title ;  and  this 
being  so,  and  expressly  declining  to  hold  that  there  had  been  "  accept- 
ance and  receipt "  within  the  statute,  they  held  that,  after  the  buggy  had 
been  destroyed  by  fire  on  the  seller's  premises,  the  loss  fell  on  the  buyer, 
and  that  the  seller  could  maintain  an  action  against  him  for  the  contract 
price.  The  court  treated  the  transaction  throughout  as  one  to  which  the 
statute  did  not  apply.  Yet  the  effect  of  the  decision  was  to  enforce  pay- 
ment of  the  contract  price  of  a  completed  chattel  of  more  than  the  statute 
price,  when  there  was  neither  memorandum,  nor  earnest,  nor  acceptance 
and  receipt.  In  this  aspect  the  case  appears  to  be  anomalous. 


CH.   VIII.]  VERBAL   CONTRACTS,    HOW   FAR   VALID.  173 

the  statute,  so  that  the  objection  of  enforcing  the  verbal 
contract  against  a  party  to  it  no  longer  exists,  the  title  to 
the  goods  has  been  held  to  be  in  the  buyer  as  of  a  date 
prior  to  the  satisfaction  of  the  statute,  so  as  to  make  him, 
and  not  the  seller,  bear  the  damage  sustained  by  the  goods 
after  the  contract  of  sale  and  before  the  satisfaction  of  the 
statute. 1 

§  138  /.  Cases  where  the  rights  or  liabilities  of  third  par- 
ties depend  upon  the  question  of  title  passing  by  the  verbal 
contract  without  satisfaction  of  the  statute  present  more  diffi- 
culty. In  Morgan  v.  Sykes,2  the  transaction  was  such  as 
apparently  to  vest  the  title  to  the  goods  in  the  buyer  at  com- 
mon law,  before  the  loss  of  part  of  them  by  a  carrier,  who 
was  sued  in  this  action  by  the  vendor  to  recover  their  value; 
and  the  vendor  recovered,  and  judgment  on  the  verdict  was 
sustained.  The  residue  of  the  goods  was  accepted  and 
received  by  the  buyer  after  the  loss;  but  this  fact  was  held 
immaterial.  In  Stockdale  v.  Dunlop3  there  was  a  dictum 
by  Parke,  B.,  to  the  effect  that  the  complete  oral  contract 
of  purchase,  enough  to  give  title  at  common  law,  did  not, 
in  the  absence  of  compliance  with  the  statute,  give  the 
buyer  an  insurable  interest.  And  this  dictum  was  referred 
to  and  approved  by  Willes,  J.  (though  the  question  was  not 
necessary  to  the  decision),  in  Felthouse  v.  Bindley ; 4  and  there 
has  been  a  decision  to  the  same  effect  by  a  majority  of  the 
Court  of  Appeals  of  New  York.6  In  O'Neil  v.  N.  Y.  C. 
&  H.  R.  R.  Co.,6  where  the  goods  after  the  oral  sale  were 
destroyed  by  fire  in  the  hands  of  the  carrier  on  the  way  to 

1  Bailey  v.   Sweeting,  9  C.  B.  N.  a.  843;  Wilkinson  t>.  Evans,  L.  R. 
1  C.  P.  407;  Townsend  v.  Hargraves,  118  Mass.  325;  Leather  Cloth  Co. 
v.  Hieronimus,  L.  R.  10  Q.  B.  140;  Phillips  v.  Ocmulgee  Mills,  55  Ga 
633,  Vincent  v.  Germond,  11  Johns.  (N.  Y.)  283. 

2  Morgan  v.  Sykes,  3  Q.  B.  486,  note. 

8  Stockdale  v.  Dunlop,  6  Mees.  &  W.  224. 

4  Felthouse  v.  Bindley,  11  C.  B.  N.  8.  869. 

6  Pitney  v.  Glen's  Falls  Ins.  Co.,  65  N.  Y.  6. 

•  O'Neil  iv  N.  Y.  C.  &  II.  R.  R.  Co.,  60  N.  Y.  138. 


174  STATUTE   OF  FRAUDS.  [CH.  VIII. 

the  purchaser,  it  was  held  by  the  Court  of  Appeals  of  New 
York,  as  in  Morgan  v.  Sykes,  that  he  could  not  recover.  In 
Ely  v.  Ormbsy,1  the  Supreme  Court  of  the  same  State  held 
that  the  vendee,  after  oral  purchase,  could  not  maintain 
trespass  against  a  sheriff  for  attaching  the  goods  as  the 
property  of  the  seller.  And  in  the  Court  of  Appeals,  again, 
it  was  held  2  that  the  seller's  assignee  in  bankruptcy  could 
maintain  trover  against  a  creditor  of  the  buyer  attaching  the 
goods  as  his,  after  the  oral  purchase,  there  being  (as  in  all 
the  cases  now  under  examination)  no  satisfaction  of  the 
statute.  In  the  Supreme  Court  of  Maine,3  it  has  been  held 
that  a  subsequent  purchaser  by  a  third  party  by  bill  of  sale 
from  the  original  seller  of  the  same  goods  which  he  had 
already  sold  by  oral  bargain,  could  maintain  replevin  against 
the  first  purchaser  undertaking  to  carry  away  the  goods  as 
his  own.  And  in  Florida,4  it  was  held  that  the  oral  sale 
was  insufficient  to  support  an  action  by  the  purchaser  of  a 
slave  against  a  third  party  detaining  him. 

§  138  g.  The  Supreme  Court  of  the  United  States  has  dealt 
with  the  question,  in  which  of  the  parties  was  the  title  to 
cotton  at  the  time  of  its  capture,  for  the  purposes  of  an  Act 
of  Congress  allowing  compensation  to  the  loyal  owners  of 
property  captured  in  war.5  Certain  bales  of  cotton  were 
seized  by  military  order  during  the  war  of  the  rebellion ; 
the  "  Captured  and  Abandoned  Property  Act  "  allowed  the 
owner,  if  loyal,  to  recover  the  value  of  the  cotton  from  the 
United  States;  and  the  claimant  (who  was  buyer  under 
the  contract  of  sale  in  question)  brought  suit  accordingly  in 
the  Court  of  Claims,  alleging  herself  to  have  been  owner  of 
the  cotton  at  the  time  of  capture.  By  the  reporter's  state- 


1  Ely  v.  Ormsby,  12  Barb.   570.     And  see  Winner  v.   Williams,  62 
Mich.  363. 

2  Hicks  v.  Cleveland,  48  N.  Y.  84. 
•  •  Young  v.  Blaisdell,  60  Me.  272. 

4  Summerall  v.  Thoms,  3  Fla.  298. 

6  Mahan  v.  United  States,  16  Wall.  H3. 


CH.   VIII.]  VERBAL  CONTRACTS,   HOW  FAR  VALID.  175 

ment  of  the  facts  it  appears  that  the  seller  agreed  orally  with 
the  claimant  that  the  claimant  should  have  that  particular 
lot  of  cotton  in  payment  of  a  mortgage  held  by  her  from  the 
seller ;  that  the  price  of  the  cotton  was  fixed  at  so  much  per 
pound;  but  the  cotton  was  not  weighed,  nor  was  payment 
indorsed  on  the  mortgage,  nor  was  there  any  actual  or  sym- 
bolic change  of  possession.  There  was,  therefore,  no  satisfac- 
tion of  the  Statute  of  Frauds ;  but  there  was  (it  would  seem) 
an  ascertainment  of  the  particular  goods,  a  fixing  of  the  price, 
and  an  agreement  that  the  title  should  then  pass  to  the  claim- 
ant; being  a  state  of  facts  upon  which,  as  was  argued  on 
behalf  of  the  claimant,  title  passed  at  common  law.  But  the 
report  made  by  the  Court  of  Claims  of  the  facts  found  by  it, 
which  report  the  Supreme  Court  refused  to  go  behind,  stated 
that  there  was  "  no  ascertainment  of  the  price  "  of  the  cotton. 
The  Supreme  Court  affirmed  the  judgment  of  the  Court  of 
Claims  that  the  claimant  was  not,  upon  the  facts  reported, 
owner  of  the  cotton  at  the  time  of  capture;  proceeding 
apparently,  not  only  upon  the  ground  that  upon  the  facts 
reported  by  the  Court  of  Claims  there  was  no  change  of  title 
at  common  law,  but  also  upon  the  ground  that,  if  there  had 
been  such  facts  as  to  work  change  of  title  at  common  law, 
title  was  still  not  changed  for  want  of  satisfaction  of  the 
Statute  of  Frauds.  Miller,  J.,  who  delivered  the  opinion, 
after  quoting  the  Mississippi  statute  as  it  relates  to  sales  of 
goods,  viz.,  that  the  sale  should  not  be  "allowed  to  be  good 
and  valid,"  except,  etc.,  says:  "The  finding  of  the  Court  of 
Claims  negatives  in  the  most  express  terms  the  existence  in 
the  agreement,  by  which  the  title  of  the  cotton  was  supposed 
to  be  transferred,  of  each  and  every  one  of  the  acts  or  condi- 
tions, some  one  of  which  is  by  that  statute  made  necessary  to 
the  validity  of  the  contract.  To  hold  that  an  agreement 
which  that  statute  declares  shall  not  be  allowed  to  be  good 
and  valid  was  sufficient  to  transfer  the  title  of  the  property  to 
the  claimant,  would  be  to  overrule  the  uniform  construction 
of  this  or  a  similar  clause  in  all  statutes  of  frauds  by  all  the 


176  STATUTE   OF  FRAUDS.  [CH.  VIII. 

courts  which  have  construed  them."  No  authorities  are 
cited  in  the  opinion  of  the  court;  nor  does  it  notice  the  dis- 
tinction between  "  good  and  valid  "  for  purposes  of  enforce- 
ment, and  "  good  and  valid  "  for  the  purpose  of  passing  title 
between  the  parties. 

§  138  h.  In  opposition  to  the  commanding  current  of 
authority  above  exhibited,  as  to  the  effect  of  the  oral  purchase 
to  give  title  to  the  buyer,  where  the  rights  or  liabilities  of 
third  parties  are  involved,  there  is  an  early  case  in  Maine,1 
where  it  was  said  that  the  buyer  by  oral  purchase  could 
maintain  an  action  against  a  sheriff  attaching  the  goods  as 
the  property  of  the  seller;  and  a  case  in  the  Supreme  Court 
of  Massachusetts,2  where  the  plaintiff  sued  in  replevin  of 
goods  on  a  title  acquired  from  one  whose  title  was  by  oral 
purchase,  and  it  was  held  that  he  had  such  an  interest  in  the 
goods  that  he  could  maintain  the  action.  It  was  decided  in 
another  Massachusetts  case  that  one  who  has  orally  contracted 
to  buy  a  ship  has  an  insurable  interest  in  her.3 

§  138  i.  It  will  be  noticed  that  in  all  the  cases  there  had 
been  no  satisfaction  of  the  statute  up  to  the  time  when  the 
right  or  the  liability  of  the  third  party  accrued.  In  some  of 
them  there  was  such  satisfaction  afterwards ;  but  none  of  the 
cases  recognize  it  as  having  any  retroactive  effect  upon  the 
title  given  by  the  oral  purchase  as  to  the  third  party.4 

§  138  y.  If  the  question  whether  an  oral  purchase  of  goods 
sufficient  to  vest  title  as  between  the  buyer  and  seller  is  suffi- 
cient to  do  so  as  to  third  parties,  can  be  regarded  as  open, 
there  is  much  to  be  said  against  the  doctrine  that  it  is  not; 

i  Cowan  v.  Adams,  1  Fairf.  374. 
*  Norton  r.  Simonds,  124  Mass.  19. 

3  Amsinck  v.  American  Insurance  Co.,  129  Mass.  185. 

4  In  an  article  in  the  American  Law  Review,  Vol.  IX.  p.  434,  containing 
a  very  intelligent  discussion  of  this  head  of  the  statute,  it  is  suggested 
that  the  subsequent  satisfaction  of  the  statute  operates  retroactively  as 
between  the  parties  by  a  fiction  of  law,  and  does  not  as  to  third  parties, 
because  no  fiction  of  law  affects  third  parties.    See  Messmore  v.  Cunning- 
ham, 78  Mich.  623. 


CH.    VIII.]  VERBAL   CONTRACTS,   HOW  FAR   VALID.  177 

strongly  sustained  by  authority  as  we  have  seen  that  doctrine 
to  be.  It  has  been  already  shown  in  this  chapter  that  the 
statute  does  not  make  the  contract  void,  but  only  allows  a 
defence  to  its  enforcement,  which  defence  is  personal  to  the 
defendant  and  may  be  waived  by  him,  and  which  no  third 
party  can  assume  that  he  will  or  would  avail  himself  of,  so 
as  in  effect  to  give  the  third  party  the  privilege  of  the  statute. 
Now  the  decisions  under  consideration  seem  to  contravene 
this  well-settled  and  salutary  rule.  In  the  case  of  the  cap- 
tured cotton  the  United  States  undertook  to  decide  that  the 
seller  of  the  cotton  would  avail  himself  of  his  statutory  right, 
and  therefore  held  that  the  buyer  had  no  title ;  and  so  in  the 
cases  holding  that  the  buyer  had  no  insurable  interest.  In 
the  cases  of  attaching  officers,  it  was  their  business  to  find 
out  in  whom  was  the  title  to  the  goods  before  they  attached 
them ;  and  there  appears  to  be  no  reason  why  they  should  not 
be  bound  by  the  facts  which  make  a  common  law  title  in  the 
case  of  a  chattel  worth  more  than  fifty  dollars,  as  well  as  in 
the  case  of  a  chattel  worth  less.  In  the  cases  of  suits  against 
carriers,  it  has  been  supposed  that  to  allow  the  question  of 
title  to  be  determined  as  at  common  law,  and  without  regard 
to  the  fact  that  the  statute  had  not  been  complied  with,  would 
work  practical  mischief  by  exposing  the  carrier  to  a  double 
recovery.  But  suppose  the  buyer  sue,  and  recover  as  for  the 
loss  of  his  goods,  the  seller  cannot  afterwards  sue  the  carrier ; 
for  by  claiming  the  goods  as  his  own,  the  buyer  has  "accepted 
and  received  "  them,1  and  the  contract  becomes  valid  to  all 
intents  and  purposes.  Or  suppose  the  seller  sue,  can  he 
recover  against  the  carrier,  and  the  carrier  be  afterwards 
subject  to  recovery  by  the  buyer?  It  seems  not.  To  the 
seller's  action,  the  carrier  may  plead  that  the  title  is  in  the 
buyer ;  and  this  is  not  to  enforce  the  contract  against  the  seller 
contrary  to  the  statute ;  the  seller,  having  done  his  part  by 
delivering  the  goods,  has  no  privilege  under  the  statute,  but 
is  bound  unless  the  buyer  should  afterward  refuse  to  accept 

1  See  post,  Chap.  XV. 
12 


178  STATUTE   OF  FRAUDS.  [CH.   VIII. 

the  goods;  which  right  of  refusal  he  alone  can  exercise  or 
waive.  Again,  suppose  the  goods  are  damaged  in  the  hands 
of  the  carrier,  and  afterwards  the  statute  is  satisfied  so  that 
the  buyer  becomes  bound  to  pay  the  seller  the  contract  price ; 
if  the  seller  can  recover  from  the  carrier  for  the  damage  (as 
the  cases  we  are  criticising  hold),  and  afterward  recover  the 
full  contract  price  from  the  buyer,  he  is  paid  twice  for  a 
part  of  the  goods ;  and  the  buyer  who  has  had  to  pay  for  the 
goods  as  perfect,  can  have  no  action  against  the  carrier  for 
the  damage.1 

1  This  question  might  well  have  arisen  upon  the  facts  in  Bailey  v. 
Sweeting,  9  C.  B.  N.  s.  843.  And  see  C.  B.  &  Q.  R.  R.  v.  Boyd,  118 
111.  73. 


CH.  IX.]   CONTRACTS  IN  PART  WITHIN  THE  STATUTE.      179 


CHAPTER  IX. 

CONTRACTS  IN   PART  WITHIN   THE  STATUTE. 

§  139.  IN  the  present  chapter  will  be  briefly  considered, 
how  far  a  promise  embracing  several  executory  stipulations 
is  affected  by  the  circumstance  that  one  or  more  of  those 
stipulations  are  not  available  to  the  promisee  by  reason  of  the 
Statute  of  Frauds ;  the  remainder  being,  if  they  stood  alone, 
good. 

§  140.  It  is  clear  that  if  the  several  stipulations  are  so 
interdependent  that  the  parties  cannot  reasonably  be  consid- 
ered to  have  contracted  but  with  a  view  to  the  performance 
of  the  whole,  or  that  a  distinct  engagement  as  to  any  one 
stipulation  cannot  be  fairly  and  reasonably  extracted  from 
the  transaction,  no  recovery  can  be  had  upon  it,  however 
clear  of  the  Statute  of  Frauds  it  may  be,  or  whatever  be  the 
form  of  action  employed.  The  engagement  in  such  case  is 
said  to  be  entire  and  indivisible.1  A  reference  to  some  of 
the  decisions  on  this  point  will  illustrate  the  principle. 

§  141.  In  Cooke  v.  Tombs,  the  defendant,  a  ship-builder, 
verbally  contracted  to  sell  certain  freehold  premises  and  stock 
in  trade,  principally  consisting  of  docks  and  timber  for  ship- 
building, and  some  houses.  Upon  a  suit  in  equity  for  a 
decree  of  specific  execution  of  the  whole  agreement,  it  was 
held  that  the  agreement,  being  void  as  to  the  land,  must  be 
void  also  as  to  the  personal  property  which  was  to  be  sold 

1  Rainbolt  v.  East,  56  Ind.  538;  Becker  v.  Mason,  30  Kansas  697; 
Caylor  v.  Roe,  99  Ind.  1;  Jackson  v.  Evans,  44  Mich.  510;  Pond  v. 
Sheean,  132  111.  312. 


180  STATUTE   OF  FRAUDS.  [CH.   IX. 

with  it;  McDonald,  C.  B.,  remarking  that  it  never  could  be 
the  intention  of  the  parties  that  the  stock  should  be  sold  apart 
from  the  premises,  as  most  of  it  was  of  little  comparative 
value  separately,  and,  besides,  that  the  agreement  being  for 
an  entire  sum  the  court  could  never  sever  it.1  Similar  to 
this  was  the  case  of  Lea  v.  Barber,  where  the  defendant  made 
an  oral  agreement  to  take  an  assignment  of  leasehold  prem- 
ises, to  wit,  a  brick-ground,  at  one  hundred  pounds,  and  to 
buy  the  stock,  consisting  chiefly  of  half-made  bricks,  at  a 
valuation  to  be  made  by  arbitrators.  The  arbitrators  settled 
the  price,  but  the  defendant  refused  to  complete  the  purchase. 
An  action  was  brought  upon  the  entire  agreement,  and  the 
plaintiff,  admitting  that  the  contract  as  to  the  assignment 
was  void  by  the  Statute  of  Frauds,  claimed  that  he  could 
recover  the  valuation  of  the  stock.  But  it  was  held  by 
McDonald,  C.  B.,  on  the  authority  of  Cooke  v.  Tombs,  that 
the  agreement,  being  in  its  nature  entire,  could  not  be  severed, 
and  that,  being  void  as  to  the  land,  it  was  void  in  toto.2  So 
in  Mechelen  v.  Wallace,  where  the  declaration  stated  that 
the  defendant  wished  the  plaintiff  to  hire  of  her  a  house,  and 
furniture  for  the  same,  at  the  rent,  etc.,  and  thereupon,  in 
consideration  that  the  plaintiff  would  take  possession  of  the 
house  partly  furnished,  and  would,  if  the  defendant  sent  into 
it  complete  furniture  by  a  reasonable  time,  become  tenant  to 
the  defendant  of  the  house  with  all  the  furniture,  at  the 
aforesaid  rent,  and  pay  the  same  quarterly  from  a  certain 
day,  to  wit,  etc.,  the  defendant  promised  the  plaintiff  to  send 
into  the  said  house,  within  a  reasonable  time  after  the  plain- 
tiff's taking  possession,  all  the  furniture  necessary,  etc. ;  it 
was  held  that  the  defendant's  agreement  to  send  in  furniture 

1  Cooke  v.  Tombs,  2  Anst.  420.     But  see  Stansell  v.  Leavitt,  51  Mich. 
536. 

2  Lea  v.  Barber,  2  Anst.  425,  note.    See  also  Thayer  ».  Rock,  13  Wend. 
(N.  Y.)  53,  in  which  the  contract  was  for  the  sale  of  one-sixth  of  a  mill- 
site,  with  all  the  timber  and  irons  belonging  to  the  mill,  and  it  was  held 
to  be  entire.    See  Prante  v.  Schutte,  18  Brad.  (111.  App.  Ct.)  62  ;   Grant 
v.  Grant,  63  Conn.  530 ;  Stringfellow  v.  Ivie,  73  Ala.  209. 


CH.  IX.]    CONTRACTS  IN  PART  WITHIN  THE  STATUTE.      181 

was  an  inseparable  part  of  the  contract  of  leasing,  and  that 
the  action  could  not  be  sustained.1 

§  142.  In  Irvine  v.  Stone,  the  Supreme  Court  of  Massachu- 
setts held  a  contract  for  the  purchase  of  coals  at  Philadelphia 
and  to  pay  for  the  freight  of  the  same  to  Boston,  to  be  in- 
separable, so  that  no  recovery  for  the  freight  could  be  had ; 2 
and  this  case  is  not  unlike  that  of  Biddell  v.  Leeder,  where 
the  Court  of  Queen's  Bench  held,  upon  a  contract  for  the 
purchase  of  the  plaintiff's  share  in  a  ship  and  to  indemnify 
him  for  all  liabilities  on  account  of  his  share,  that  the  latter 
engagement  was  inseparably  connected  with  the  former.8  A 
contract  to  hire  a  shop  at  a  certain  rent,  and  to  pay  the  land- 
lord the  amount  expended  in  fitting  it  up,  has  also  been 
decided,  by  the  Supreme  Court  of  Massachusetts,  to  be 
indivisible.4 

§  143.  On  the  other  hand,  the  cases  where  the  different 
engagements  of  the  party  have  been  held  such  as  to  admit  of 
being  reasonably  considered  separately,  or  as  independent 
contracts,  are  equally  clear  in  their  general  spirit  and  princi- 
ple. In  Mayfield  v.  Wadsley,  which  was  upon  a  contract 
for  the  sale  of  a  growing  crop  of  wheat,  and  also  of  certain 
dead  stock  upon  a  farm,  it  was  remarked  by  Abbott,  C.  J., 
that  the  bargain  in  regard  to  the  latter  was  made  after  an 
interval  of  time  (though  at  the  same  interview  and  almost 
simultaneously  with  the  former),  and  he  seems  to  consider 

1  Mechelen  v.  Wallace,  7  Ad.  &  E.  49.     See  also  the  similar  case  of 
Vaughan  v.  Hancock,  3  C.  B.  766.     And  compare  §  117  a,  supra,  where 
Angell  v.  Duke,  L.  R.  10  Q.  B.  174,  is  discussed. 

2  Irvine  v.  Stone,  6  Cush.  508.     So  with  a  contract  to  convey  land  and 
pay  off  the  encumbrances  upon  it.    Duncan  w.  Blair,  5  Denio  (N.  Y.)  196 ; 
Dock  v.  Hart,  7  Watts  &  S.  (Pa.)  172.     So  with  a  verbal  warranty  of 
quality  of  goods  sold  under  a  verbal  contract.     Lamb  v.  Crafts,  12  Met. 
(Mass.)  353.     And  see  Hanson  v.  Marsh,  40  Minn.  1. 

«  Biddell  v.  Leeder,  1  Barn.  &  C.  327. 

4  McMullen  v.  Riley,  6  Gray,  500.  An  agreement  to  convey  land, 
coupled  with  a  guaranty  that  a  certain  parcel  of  it  should  contain  a  cer- 
tain number  of  acres,  has  been  held  indivisible.  Dyer  v.  Graves,  37  Vt. 
369. 


182  STATUTE   OF  FRAUDS.  [CH.   IX. 

that  if  that  interval  had  not  occurred,  it  would  be  necessary 
to  hold  the  contract  indivisible.1  But  the  subsequent  de- 
cision of  the  Court  of  Exchequer  in  Wood  v.  Benson  clearly 
establishes  a  rule  independent  of  any  such  distinction.  There 
was  a  written  guaranty,  by  which  the  defendant  engaged  to 
pay  for  all  the  gas  which  might  be  consumed  at  a  certain 
theatre  during  the  time  it  was  occupied  by  a  third  party, 
and  also  to  pay  for  all  arrears  which  might  be  then  due.  It 
was  held  that  the  plaintiff  could  recover  upon  the  former 
branch  of  the  contract,  on  a  count  properly  framed  for  the 
purpose.2 

§  144.  Where  an  agreement  is  originally,  and  remains 
until  the  time  of  bringing  suit,  indivisible  and  executory  as 
to  its  various  stipulations,  the  disability  of  a  plaintiff  to 
recover  upon  any  one  of  those  stipulations  manifestly  results, 
not  from  the  fact  that  the  statute  happens  to  apply  to  the 
remainder,  but  from  the  tenor  of  the  agreement,  by  which  it 
has  been  shown  to  be  the  intention  of  the  parties  that,  if 
performed  at  all,  it  is  to  be  performed  as  a  whole.3 

§  145.  Where,  on  the  other  hand,  the  stipulations  of  the 
defendant  are  not  so  connected  that  they  cannot  reasonably 
be  performed  separately  and  independently,  the  question 
arises  whether  the  plaintiff  can  recover  upon  one  or  more  to 
which  the  statute  does  not  apply,  notwithstanding  there  are 
others  to  which  it  does  apply.  And,  in  the  first  place,  it  is 
clear  upon  all  the  authorities  that  he  cannot,  if  his  action  be 
brought  upon  the  entire  contract.  On  this  point  it  is  neces- 
sary that  the  principal  cases  be  examined  a  little  in  detail, 
in  order  to  show  clearly  the  reason  of  the  rule. 

§  146.  In  the  case  of  Lord  Lexington  v.  Clarke,  the 
declaration  set  forth  that  the  plaintiff  had  demised  premises 

1  Mayfield  v.  Wadsley,  3  Barn.  &  C.  357. 

2  Wood  v.  Benson,  2  Cromp.  &  J.  94;  Littlejohn,  ex  parte,  3  M.  D.  & 
De  G.  182;  Pierce  ».  Woodward,  6  Pick.  (Mass.)  206;  Mobile  M.  D.  & 
M.  Ins.  Co.  v.  McMillan,  31  Ala.  711;  Lowman  v.  Sheets,  124  Ind.  416. 

8  Dowling  v.  McKenney,  124  Mass.  478. 


CH.   IX.]         CONTRACTS   IN   PART   WITHIN   THE   STATUTE.  183 

at  will  to  the  first  husband  of  the  defendant's  wife,  and  that 
there  was  due  from  him  .£160  rent,  and  that  the  defendant's 
wife,  in  consideration  of  being  allowed  to  hold  possession  till 
a  certain  time  and  to  remove  certain  fixtures,  promised  to 
pay  the  £160  and  £260  more;  that  she  did  hold  possession 
and  took  the  fixtures,  but  had  not  paid  the  money.  A  special 
verdict  found  that  she  had  paid  the  former  sum  but  not  the 
latter.  By  the  opinion  of  all  the  court,  judgment  was  given 
for  the  defendant  on  the  claim  for  the  unpaid  £260,  for,  they 
said,  "  the  promise  as  to  one  part  being  void,  it  cannot  stand 
good  for  the  other,  for  it  is  an  entire  agreement,  and  the 
action  is  brought  for  both  the  sums,  and  indeed  could  not  be 
otherwise  without  variance  from  the  promise."  1  In  Thomas 
v.  Williams,  the  defendant  verbally  promised  the  plaintiff, 
who  was  about  to  distrain  upon  his  tenant  for  rent,  that  if  he 
would  not  distrain,  he  would  pay  him  the  rent  which  would 
be  due  at  Michaelmas  ensuing,  including,  of  course,  the 
arrears  as  well  as  what  should  accrue  in  the  mean  time.  The 
plaintiff  sued  upon  this  promise,  and  his  verdict  was  for  a 
sum  made  up  partly  of  rent  due  at  the  time  of  the  promise 
and  partly  of  what  accrued  afterwards.  On  argument  upon 
a  rule  to  set  aside  the  verdict,  it  was  held  by  the  Court  of 
Queen's  Bench  that  the  contract,  being  in  part  within  the 
Statute  of  Frauds,  was  wholly  void.2  In  both  cases,  it  will 
be  observed,  the  declaration  was  upon  the  entire  special 
promise,  and  contained  no  general  counts.  Consequently  the 
entire  contract  was  to  be  proved  as  laid,  and  after  the  plain- 
tiff had,  by  oral  evidence,  shown  that  part  of  it  which  was 
not  within  the  Statute  of  Frauds,  and  upon  which  he  wished 
to  recover,  there  was  a  fatal  variance  between  the  contract 
he  had  counted  upon  and  that  which  he  had  proved.  In 
Chater  v.  Beckett,  where  the  defendant  engaged  to  pay  the 
plaintiff  the  debt  a  third  person  owed  him,  and  all  the  ex- 
penses he  had  incurred  for  the  purpose  of  putting  his  debtor 

1  Lord  Lexington  v.  Clarke,  2  Vent.  223. 

2  Thomas  v.  Williams,  10  Barn.  &  C.  664. 


184  STATUTE    OF   FKAUDS.  [CH.    IX. 

into  bankruptcy,  there  was  a  special  count  setting  forth  the 
entire  contract,  and  also  general  counts  for  money  paid  to 
defendant's  use  and  money  had  and  received.  Neither  of  the 
latter  counts  was  supported,  however,  for  in  paying  his  own 
expenses,  the  plaintiff  had  only  paid  his  own  debt ;  and  so 
the  case  was  correctly  decided  for  the  defendant,  the  author- 
ities last  quoted  being  precisely  in  point.1 

§  147.  It  is  quite  obvious  that  the  cases  which  have  just 
been  quoted  proceeded,  in  fact,  upon  the  ground  that  by  the 
form  of  the  plaintiff's  action  he  had  precluded  himself  from 
proving  even  so  much  of  the  contract  as  was  not  affected  by 
the  Statute  of  Frauds,  because  to  do  so  would  have  involved 
a  variance  from  the  declaration,  which  alleged  the  entire  and 
therefore  a  different  contract.2  But  they  have  been  conceived 
to  establish  a  principle  that,  if  one  stipulation  in  the  engage- 
ment of  a  defendant  was  void  by  the  statute,  no  recovery 
could  be  had  upon  the  remainder.  This  opinion,  which 
doubtless  grew  out  of  the  generality  of  the  language  employed 
by  judges  in  earlier  cases,  does  not  seem  to  have  been  dis- 
tinctly affirmed  and  decided  as  law  in  any  case  but  that  of 
Loomis  v.  Newhall  in  Massachusetts.  There  the  defendant 
had  furnished  supplies  to  the  plaintiff's  son,  for  which  the 
son  was  liable,  and  the  defendant  at  the  request  of  the  plain- 
tiff continued  to  furnish  supplies,  the  plaintiff  saying,  "  for 
what  you  have  done  and  for  what  you  shall  do  for  my  son,  I 
will  see  you  paid."  Besides  the  count  on  an  account  an- 
nexed, the  declaration  contained  the  common  money  counts. 
It  was  held  upon  the  supposed  authority  of  Chater  v.  Beckett 
and  Lord  Lexington  v.  Clarke,  that  the  plaintiff  could  not 
recover  for  that  part  of  the  claim  which  arose  after  the 


1  Chater  v.  Beckett,  7  T.  R.  201. 

2  The  following  American  cases  stand  on  the  same  ground;  Noyes  v. 
Humphreys,  11  Grat.  (Va.)  636;  Crawford  v.  Morrell,  8  Johns.  (N.  Y.) 
253;  Henderson  v.  Hudson,  1  Munf.  (Va.)  510.     And  see  Alexander  v. 
Ghiselin,  5  Gill  (Md.)    138;   Duncan  v.   Blair,  5  Denio  (N.   Y.)   196; 
Flournoy  v.  Van  Campen,  71  Cal.  14. 


CH.   IX.]        CONTRACTS   IN   PART   WITHIN   THE   STATUTE.  185 

promise,  inasmuch  as  his  recovery  on  that  part  which  arose 
previously  was  barred  by  the  statute  as  a  promise  to  pay  the 
debt  of  his  son.1 

§  148.  But  the  true  import  of  those  and  the  other  early 
English  cases  was  defined  in  the  case  of  Wood  v.  Benson, 
decided  in  the  Court  of  Exchequer  in  1831.  That  was 
assumpsit  on  the  following  guaranty  signed  by  the  defend- 
ant: "I,  the  undersigned,  do  hereby  engage  to  pay  the 
directors  of  the  Manchester  Gas  Works,  or  their  collector, 
for  all  the  gas  which  may  be  consumed  in  the  Minor  Theatre 
and  by  the  lamps  outside  the  theatre,  during  the  time  it  is 
occupied  by  my  brother-in-law,  Mr.  Neville ;  and  I  do  also 
engage  to  pay  for  all  arrears  which  may  be  now  due. "  There 
was  a  count  for  gas  sold  and  delivered.  The  general  issue 
was  pleaded,  and  it  was  objected  that  there  was  no  consid- 
eration apparent  on  the  face  of  the  instrument  for  the 
promise  to  pay  the  arrears ;  and  that  the  agreement,  there- 
fore,2 being  void  as  to  part  under  the  Statute  of  Frauds,  was 
void  as  to  the  whole ;  and  to  this  the  cases  of  Lea  v.  Barber, 
Lexington  v.  Clarke,  Chater  v.  Beckett,  and  Thomas  v. 
Williams,  were  cited.  The  court  admitted  their  authority, 
but  explained  that,  as  the  actions  were  brought  in  each  case 
upon  the  entire  contract,  the  plaintiffs  therein  could  not 
recover;  and  they  decided  that,  in  the  case  before  them, 
the  plaintiff  could  recover  on  the  separate  count  for  gas  sold 
and  delivered,  which  was  applicable  to  the  binding  part  of 
the  contract.8 

§  149.  The  decision  in  Loomis  v.  Newhall  is  no  longer 
law  in  Massachusetts.  In  the  case  of  Irvine  v.  Stone,  the 
Supreme  Court  of  that  State  had  occasion  to  examine  into 

i  Loomis  v.  Newhall,  15  Pick.  159;  overruled  in  Rand  t>.  Mather, 
11  Cush.  1.  The  case  of  Robson  v.  Harwell,  6  Ga.  589,  while  admitting 
Loomis  v.  Newhall  as  authority,  decides  that  the  principle  there  held  does 
not  extend  to  declarations  of  trusts. 

8  See  post,  §§  386,  el  seq. 

8  Wood  v.  Benson,  2  Cromp.  &  J.  94. 


186  STATUTE   OF  FRAUDS.  [CH.   IX. 

the  earlier  English  decisions  upon  the  subject,  and,  while 
they  did  not  find  it  necessary  to  overrule  it,  stated  conclu- 
sions irreconcilable  with  it.1  And  later  it  was  deliberately 
overruled  by  them,  and  the  doctrine  established  in  Wood  v. 
Benson  adopted.  In  the  opinion  of  the  court,  delivered  by 
Metcalf,  J.,  the  authorities  are  very  carefully  reviewed,  and 
it  is  particularly  noticed  that  in  Loomis  v.  Newhall  there 
were  common  counts  upon  which  the  plaintiff  was  entitled 
to  recover ;  otherwise,  it  could  have  been  supported  upon  the 
same  ground  as  the  early  English  cases.2 

§  150.  We  have  thus  seen  that,  on  a  count  properly  framed 
for  the  purpose,  a  plaintiff  may  recover  upon  such  of  the 
executory  stipulations  of  the  defendant's  agreement  as  are 
not  liable  to  any  objection  under  the  Statute  of  Frauds,  pro- 
vided they  are,  from  the  nature  of  the  contract,  capable  of 
being  considered  separately  from  the  remainder.  But  even 
where  the  various  stipulations  are  so  connected  together  that, 
so  long  as  they  all  remained  executory,  no  action  could  be 
maintained  upon  any  one  of  them  separately,  yet  if  that  part 
to  which  the  statute  would  have  applied  has  been  executed, 
and  thus  in  fact  severed  from  the  remainder,  an  action  may 
be  sustained  upon  the  remaining  executory  part,  and  it  is  no 
objection  to  such  action  that  the  plaintiff  may  be  obliged 
incidentally  to  prove  the  making  and  execution  of  the  other 
part,  inasmuch  as  he  founds  no  claim  upon  it.3 

§  151.  Where  the  plaintiff,  from  the  nature  of  his  case  or 
of  the  relief  which  he  requires,  is  obliged  to  set  up  the  entire 

1  Irvine  v.  Stone,  6  Gush.  508. 

2  Rand  v.  Mather,  11  Gush.  1. 

8  See  §§  117,  et  seq.,  ante.  Also  Dock  v.  Hart,  7  Watts  &  S.  (Pa.)  172; 
Hess  v.  Fox,  10  Wend.  (N.  Y.)  436,  distinguishing  Van  Allstine  v.  Wim- 
ple, 5  Cowen  (N.  Y.)  162;  Page  v.  Monks,  5  Gray  (Mass.)  492;  Trow- 
bridge  v.  Wetherbee,  11  Allen  (Mass.)  361  ;  Wetherbee  v.  Potter,  99  Mass. 
354.  And  see  Twidy  v.  Saunderson,  9  Ired.  (N.  C.)  5;  Manning  v. 
Jones,  Busb.  (N.  C.)  Law,  368 ;  Dyer  v.  Graves,  37  Vt.  369;  Tinkler  v. 
Swaynie,  71  Ind.  562;  Humphreys.  Fair,  79  Ind.  410,;  Stephenson  v. 
Arnold,  89  Ind.  426. 


CH.  IX.]   CONTRACTS  IN  PART  WITHIN  THE  STATUTE.     187 

contract,  he  will  of  course  be  debarred  from  recovering,  if 
any  executory  part  of  the  contract  be  within  the  statute  and 
he  has  no  written  evidence  of  it.  Thus,  if  a  bill  in  equity  is 
brought  to  enforce  so  much  of  the  contract  as  is  not  affected 
by  the  statute,  it  would  seem  that  the  complainant  must  fail 
of  his  decree,  the  proceeding  being  founded  wholly  on  the 
engagements  specially  made  between  the  parties.1  In  Head 
v.  Baldrey,  decided  some  years  after  Wood  v.  Benson  had 
denned  the  rule  in  such  cases,  the  defendant  had  been  owing 
the  plaintiff  a  sum  of  money  for  goods  previously  sold,  and 
he  agreed,  if  the  plaintiff  would  give  him  time  upon  that  debt 
and  would  sell  him  certain  other  goods,  he  would  pay  for  the 
whole  by  accepting  a  bill  of  a  certain  description.  On  his 
refusing  to  accept  the  bill,  an  action  was  brought  in  which, 
besides  the  special  count  upon  the  contract,  there  was  a 
count  for  goods  sold  and  delivered.  The  defendant  pleaded 
the  Statute  of  Frauds,  because  part  of  the  consideration  of 
his  promise  was  the  price  of  the  wool,  the  sale  of  which  was 
not  binding  under  the  statute.  On  demurrer  to  the  plea, 
because  the  declaration  showed  a  good  consideration  (namely, 
the  debt  for  goods  previously  sold),  it  was  held  in  the 
Queen's  Bench  that,  part  of  the  consideration  failing  by 
reason  of  the  statute,  the  plea  was  good,  and  the  defendant 
had  judgment.  Lord  Denman,  C.  J.,  delivering  the  opinion 
of  the  court,  said :  "  We  apprehend  that  the  defendant  can 
only  be  made  chargeable  for  a  breach  of  the  promise  laid ; 
and  that  promise  is,  not  to  pay  for  these  or  any  other  goods 
sold,  but  to  fulfil  a  specific  arrangement  between  the  parties, 
that  is,  to  pay  by  accepting  a  bill  in  respect  of  this  liability, 
and  a  new  one  then  in  contemplation."2 

§  152.  A  class  of  contracts  to  which  allusion  has  been 
heretofore  made,  namely,  those  in  which  a  party  promises  to 

1  Alexander  v.  Ghiselin,  5  Gill  (Md.)  138;  Henderson  v.  Hudson, 
1  Munf.  (Va.)  510,  per  Tucker,  J. ;  Robson  v.  Harwell,  6  Ga.  589,  per 
Lumpkin,  J. 

2  Head  v.  Baldrey,  6  Ad.  &  E.  468. 


188  STATUTE   OF  FRAUDS.  [CH.   IX. 

do  one  of  two  or  more  things,  the  statute  applying  to  one  of 
the  alternative  engagements,  but  not  to  the  others,  is  some- 
times referred  to  the  head  of  contracts  in  part  affected  by  the 
statute.  It  is  needless  to  dwell  upon  the  question  whether 
they  are  properly  so  referred.  It  is  manifest  that  of  such 
alternative  engagements  no  action  will  lie  upon  that  one 
which,  if  it  stood  alone,  could  be  enforced  as  being  clear  of 
the  Statute  of  Frauds,  because  the  effect  would  be  to  enforce 
the  other;  namely,  by  making  the  violation  of  it  the  ground 
of  an  action.1 

1  Van  Allstine  v.  Wimple,  5  Cowen  (N.  Y.)  162;  Patterson  v.  Cun- 
ningham, 12  Me.  506;  Goodrich  v.  Mckols,  2  Root  (Conn.)  498;  Rice 
v.  Peet,  15  Johns.  (N.  Y.)  503;  Howard  v.  Brower,  37  Ohio  St.  402.  But 
see  Couch  v.  Meeker,  2  Conn.  302. 


CH.  X.]  GUARANTIES.  189 


CHAPTER  X. 

GUARANTIES. 

§  153.  IN  the  fourth  section  of  the  Statute  of  Frauds, 
special  promises  by  executors  or  administrators  to  answer 
damages  out  of  their  own  estates  appear  to  be  spoken  of  as 
one  class  of  that  large  body  of  contracts  known  as  guaranties. 
And  there  would  be  no  distinction  between  them,  but  for  the 
circumstance  that  the  executor  or  administrator,  being  the 
legal  representative  of  the  party  originally  liable,  is  already, 
in  that  capacity,  under  a  liability  to  pay  to  the  extent  of  the 
property  which  comes  to  his  hands.  The  statute,  therefore,  is 
confined  to  his  special  promise  to  pay  out  of  his  own  estate. 
But  as  such  special  promise  may  be  treated  as  collateral  to  the 
obligation  of  the  estate  which  he  represents,  the  distinction 
after  all  seems  to  be  more  technical  than  substantial.  It  will, 
accordingly,  be  proper  to  consider  such  promises  in  connec- 
tion with  guaranties,  strictly  so  called,  remarking,  as  we  go 
on,  those  points  in  which  the  application  of  the  statute  to 
the  former  admits  of  separate  notice.  One  observation  in 
regard  to  them,  however,  it  is  important  to  make.  As  an 
administrator  derives  his  office  and  interest  from  the  appoint- 
ment of  the  court,  the  statute  affords  him  no  protection 
against  the  enforcement  of  his  verbal  promise  to  answer 
damages  out  of  his  own  estate,  made  after  the  death  of  the 
testator  but  before  his  own  appointment.  On  the  other  hand, 
the  office  and  interest  of  an  executor  being  completely  vested 
in  him  at  the  instant  of  the  testator's  death,  the  statute 
applies  to  any  such  promise  made  by  him  after  that  time.1 

1  Tomlinson  r.  Gill,  Ambl.  330;  Roberts  on  Frauds,  201.  See  post, 
§186. 


190  STATUTE   OF   FRAUDS.  [CH.   X. 

§  154.  In  considering  the  general  subject  of  guaranties  as 
affected  by  the  Statute  of  Frauds,  it  is  proposed  to  inquire, 
first,  what  are  debts,  defaults,  or  miscarriages  within  the 
meaning  of  the  statute ;  secondly,  what  is  the  nature  of  that 
special  promise  of  the  guarantor  which  is  required  to  be  in 
writing ;  and,  thirdly,  when  do  these  liabilities  so  coexist  or 
concur  as  to  bring  a  case  within  the  statute. 

§  155.  The  terms  "debt,  default,  or  miscarriage"  seem  to 
include  every  case  in  which  one  party  can  become  liable  to 
another  in  a  civil  action ;  although,  in  an  early  decision,  it 
may  be  inferred  to  have  been  doubted  whether  they  covered 
cases  of  tort. 1  That  doubt,  however,  if  it  ever  existed,  was 
afterwards  removed  by  the  judgment  of  the  Court  of  Queen's 
Bench,  in  the  case  of  Kirkham  v.  Marter.  The  defendant 
had  there  engaged  to  pay  the  plaintiff  the  damage  sustained 
by  him  from  a  third  person's  having,  wrongfully  and  without 
his  license,  ridden  his  horse,  and  thereby  caused  its  death. 
All  the  judges  concurred  that  the  liability  was  such  as  the 
statute  would  cover  by  force  of  the  word  "  miscarriage ; " 
Abbott,  C.  J.,  remarking  that  it  had  not  the  same  meaning 
as  "  default  or  debt, "  and  seemed  to  him  "  to  comprehend  that 
species  of  wrongful  act,  for  the  consequences  of  which  the 
law  would  make  the  party  civilly  responsible."  Holroyd,  J., 
went  somewhat  farther,  and  considered  that  both  "miscar- 
riage "  and  "  default "  applied  to  a  promise  to  answer  for 
another  with  respect  to  the  non-performance  of  a  duty, 
though  not  founded  upon  a  contract.2 

§  156.  Under  whatever  class  it  may  fall,  however,  the 
liability  of  the  party  for  whom  a  guarantor  within  the  statute 
makes  himself  answerable  must  be  a  clear  and  ascertained 

1  Buckmyr  y.  Darnall,  2  Ld.  Raym.  1085. 

2  Kirkham  v.  Marter,  2  Barn.  &  Aid.  613.     It  is  stated,  however,  in  a 
note  by  the  reporters,  that  this  case  was  furnished  to  them  by  a  gentleman 
of  the  bar.     The  same  point  has  been  decided  in  Connecticut,  and  the 
statute  held  to  be  applicable  to  cases  of  tort,  in  Turner  v.  Hubbell,  2  Day, 
457.     See  Combs  v.  Harshaw,  63  N.  C.  198 ;  Hayes  v.  Burkam,  51  Ind. 
130;  Baker  v.  Morris,  33  Kansas  580. 


CH.   X.]  GUARANTIES.  191 

legal  liability,  capable  of  being  enforced  against  the  party 
himself.1  Upon  this  principle  it  seems  that  an  agreement  to 
answer  for  the  debt  of  a  married  woman  is  not  within  the 
Statute  of  Frauds ;  because  at  common  law  the  contract  of  a 
married  woman  is  absolutely  void.  Where  she,  or  her  sepa- 
rate estate,  is  by  law  made  liable  for  her  debts,  the  statute 
applies.2  As  to  promises  to  answer  for  the  debt  of  a  minor, 
not  incurred  for  necessaries,  and  therefore  not  enforceable 
against  him  upon  his  plea  and  proof  of  infancy,  the  weight 
of  authority  and  of  reason  is  in  favor  of  holding  that  they  are 
within  the  statute.  While  it  is  true  that  the  minor  cannot 
be  compelled  to  pay  the  debt,  if  he  choose  to  rely  upon  his 
defence  of  infancy,  still  the  debt  is  only  voidable  at  his 
instance,  not  void,  and  the  defence  of  infancy  is  a  personal 
one,  of  which,  as  between  third  parties  (the  party  promising 
to  answer  for  him,  and  the  party  to  whom  that  promise  is 
made),  it  cannot  be  assumed  that  the  minor  will  avail  him- 
self;  just  as  we  have  seen  in  a  previous  chapter,3  that  in  a 
suit  between  third  parties  it  cannot  be  assumed  that  the 
promisor  under  an  oral  contract  covered  by  the  Statute  of 
Frauds  would  set  up  that  defence  in  a  suit  against  himself.4 

i  Mease  v.  Wagner,  1  McCord  (S.  C.)  395;  Prentice  v.  Wilkinson, 
5  Abb.  (N.  Y.)  Pr.  N.  8.  49;  First  National  Bank  r.  Kinner,  1  Utah, 
100;  Hooker  v.  Russell,  67  Wise.  257;  Buchanan  v.  Moran,  62  Conn. 
83.  This  rule  seems  to  have  been  overlooked  in  Ruppe  v.  Peterson,  67 
Mich.  437.  In  that  case  goods  had  been  ordered  by  a  man  who  died 
before  they  were  delivered.  His  widow,  carrying  on  his  business,  sub- 
sequently agreed  to  pay  for  the  goods  if  they  were  delivered  to  her,  and 
they  were  so  delivered.  Her  promise  was  held  collateral  to  the  liability 
of  the  husband's  estate :  but  qucere,  for  the  goods  were  never  delivered 
to  the  husband's  estate,  and  it  was  never  liable  for  them. 

3  Connerat  v.  Goldsmith,  6  Ga.  14.  See,  as  to  the  general  question 
of  the  application  of  the  statute  to  promises  to  answer  for  the  debt  of  a 
married  woman,  Kimball  ».  Newell,  7  Hill  (N.  Y.)  116;  Maggs  v.  Ames, 
1  Moore  &  P.  294;  8.  c.  4  Bing.  470;  Miller  r.  Long,  45  Pa.  St.  350. 

»  §§  135,  et  seg. 

*  Dexter  v.  Blanchard,  11  Allen  (Mass.)  365;  Downey  y.  Hinchman, 
25  Ind.  453;  Clark  v.  Levi,  10  N.  Y.  Leg.  Obs.  184;  King  r.  Summit,  73 
Ind.  312.  The  cases  of  Harris  v.  Huntbach,  1  Burr.  71,  Roche  ».  Chaplin, 


192  STATUTE   OF  FKAUDS.  [OH.    X. 

§  157.  Unless  some  liability  or  duty  of  a  third  person 
already  exists,  or  is  to  be  created,  there  cannot,  of  course,  be 
an  agreement  to  answer  for  the  debt,  default,  or  miscarriage 
of  another.  This  was  illustrated  in  the  case  of  Read  v.  Nash, 
where  one  Tuack  had  brought  an  action  of  assault  and  bat- 
tery against  one  Johnson.  The  cause  being  at  issue,  and  the 
record  entered  and  just  coming  on  to  be  tried,  the  defendant 
Nash,  who  was  then  present  in  court,  in  conideration  that 
Tuack  would  not  proceed  to  trial  but  would  withdraw  his 
record,  undertook  and  promised  to  pay  him  fifty  pounds  and 
costs.  Tuack,  relying  upon  this  promise,  did  withdraw  his 
record,  and  no  farther  proceeding  was  had  in  the  cause. 
Tuack  being  dead,  Read,  his  executor,  brought  the  present 
action,  and  the  question  was  whether  Nash's  promise  was  a 
promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
Johnson.  It  was  unanimously  held  by  the  judges  of  the 
Queen's  Bench  that  it  was  not;  and  Lee,  C.  J.,  delivering 
the  opinion  of  the  court,  said:  "Johnson  was  not  a  debtor; 
the  cause  was  not  tried ;  he  did  not  appear  to  be  guilty  of  any 
debt,  default,  or  miscarriage ;  there  might  have  been  a  ver- 
dict for  him  if  the  cause  had  been  tried,  for  any  thing  we  can 
tell ;  he  never  was  liable  to  the  particular  debt,  damages,  or 
costs. "  l  But  where  the  defendant  had  verbally  promised  the 


I  Bailey  (S.  C.)  Law,  419,  and  Chapin  v.  Lapham,  20  Pick.  (Mass.)  467, 
can  be  explained  without  opposition  to  the  doctrine  stated  in  the  text* 
and  are  so  explained  in  Mr.  Throop's  treatise  on  the  Validity  of  Verbal 
Agreements,  §§  259-264. 

1  Read  ».  Nash,  1  Wils.  305.  See  Bray  v.  Freeman,  2  Moore,  114, 
where,  however,  the  court  seem  to  have  applied  Read  v.  Nash  somewhat 
freely.  See  also  Griffin  v.  Derby,  5  Greenl.  (Me.)  476  ;  Sampson  ».  Swift, 

II  Vt.  315;  Peck  v.  Thompson,  15  Vt.  637;  Jepherson  v.  Hunt,  2  Allen 
(Mass.)  417;  Merrill  ».  Englesby,  28  Vt.  150;  Walker  v.  Norton,  29  Vt. 
226 ;  Douglass  v.  Jones,  3  E.  D.  Smith  (N.  Y.)  551 ;  Johnson  v.  Noonan, 
16  Wise.  687 ;  Thompson  v.  Blanchard,  3  N.  Y.  335  ;  Ingraham  v.  Strong, 
41  111.  App.  Ct.  46;  Johnson  v.  Hoover,  72  Ind.  395;  Bellows  v.  Sowles, 
57  Vt.   164;  Crowder  v.  Keys,  91   Ga.   180;  Davis  v.  Tift,  70  Ga.  52; 
Abbott  v.  Nash,  35  Minn.  451;  Snell  v.  Rogers,  70  Hun  (N.  Y.)  462; 
Buchanan  v.  Moran,  62  Conn.  83. 


CH.    X.]  GUARANTIES.  193 

plaintiff  to  pay  the  damages  sustained  by  reason  of  a  third 
person's  having  wrongfully  and  without  the  license  of  the 
plaintiff  ridden  his  horse  and  thereby  caused  its  death,  in 
consideration  that  he  would  not  bring  an  action  against  the 
third  person;  it  was  held,  by  the  Court  of  Queen's  Bench, 
that  the  defendant's  promise  was  within  the  statute,  and  that 
an  action  upon  it  could  not  be  sustained.  The  court  distin- 
guished the  case  from  Read  v.  Nash,  because  here  it  did 
appear  as  matter  of  fact  that  the  third  person  had  rendered 
himself  liable.1  The  general  principle  is  further  illustrated 
by  the  cases  where  the  plaintiff,  on  the  defendant's  verbal 
order,  has  rendered  services  or  furnished  goods  to  some 
third  person  designated  by  him.  In  such  cases,  where  the 
plaintiff  has  dealt  with  the  defendant  alone,  there  is  no  duty 
or  liability  but  that  of  the  defendant,  and  his  promise  to  pay 
for  the  work  or  the  goods  is  manifestly  original  and  valid.2 

§  157  a.  It  has  been  held  by  the  Queen's  Bench,  that  if  at 
the  time  of  the  contract  between  the  plaintiff  and  the  defend- 
ant they  supposed  a  third  person  to  be  liable  to  the  plaintiff, 
although  it  should  afterward  turn  out  that  he  was  not,  the 
statute  would  apply  to  the  defendant's  promise.  But  this 
judgment  was  reversed  in  the  Exchequer  Chamber,  and  the  re- 
versal sustained  in  the  House  of  Lords,  where  Lord  Selborne 
says:  "There  can  be  no  suretyship  unless  there  be  a  princi- 
pal debtor,  who  of  course  may  be  constituted  in  the  course 
of  the  transaction  by  matters  ex  post  facto,  and  need  not  be 
so  at  the  time,  but  until  there  is  a  principal  debtor  there 


1  Kirkham  v.  Marter,  2  Barn.  &  Aid.  613 ;  Duffy  v.  Wunsch,  42  N.  Y. 
24? 

2  Buckmyr  v.  Darnell,  2  Ld.  Raym.  1085;  San  born  v.  Merrill,  41  Me. 
467;  Sutherland  v.  Carter,  52  Mich.   151;  Peyson  v.  Conniff,  32  Neb. 
269.     See  Walker  v.  Hill,  119  Mass.  249,  per  Gray,  C.  J. ;  Chicago  & 
Wilmington  Coal  Co.  v.  Liddell,  69  111.  639.     See  post,  §  197.    In  Walker 
v.   Norton,  29  Vt.  226,  the  defendant's  promise  was  to  reimburse  the 
plaintiff  for  expense  to  be  incurred  by  him  in  hiring  a  band,  in  the  event 
that  a  voluntary  subscription  to  be  made  for  that  purpose  should  be  in- 
sufficient, and  it  was  held  that  the  statute  did  not  apply. 

13 


194  STATUTE   OF   FRAUDS.  [CH.    X. 

can  be  no  suretyship.  Nor  can  a  man  guarantee  anybody 
else's  debt,  unless  there  is  a  debt  of  some  other  person  to 
be  guaranteed. "  In  the  Exchequer  Chamber  and  the  House 
of  Lords,  it  was  considered  that  the  Queen's  Bench  had 
misapprehended  the  state  of  the  evidence,  and  that  it  ap- 
peared, or  at  least  the  jury  would  be  warranted  in  finding, 
that  the  plaintiff  and  defendant  at  the  time  of  making  their 
bargain  knew  that  the  third  party,  a  certain  local  Board  of 
Health,  had  not  become  liable;  only  it  was  known  that  it 
might  thereafter  become  liable ;  but  the  plaintiff  meanwhile 
went  directly  to  work  on  the  strength  of  the  defendant's 
promise  to  "  see  him  paid ;  "  and  these  facts  were  held  mate- 
rial, among  others,  to  be  put  to  the  jury  on  the  question, 
whether  the  plaintiff  did  not  give  credit  solely  to  the  defend- 
ant, although  the  words  used  naturally  imported  a  collateral 
undertaking.1 

§  158.  It  is  not  necessary  that  the  obligation  for  the  per- 
formance of  which  the  guaranty  is  given  should  be  express ; 
it  is  sufficient  if  it  be  implied  by  law.  Such  was  the  decision 
of  Lord  Ellenborough,  in  a  case  where  the  miscarriage  pro- 
vided against  was  the  violation  of  the  navigation  laws ; 2  and, 
indeed,  it  would  seem  to  be  impossible  by  any  other  rule  ever 
to  bring  a  case  of  tort  within  the  statute,  the  obligation  rest- 
ing on  the  third  person  in  such  a  case  arising,  of  course,  by 
implication.  It  has  been  said  in  the  Supreme  Court  of  Mas- 
sachusetts that  there  might  be  instances  in  which  a  plaintiff 
who,  for  the  benefit  of  a  third  person,  had  undertaken  an 
onerous  obligation  at  the  defendant's  verbal  request,  would 
have  a  remedy  against  him,  notwithstanding  that  such  third 
person  was  also  liable  incidentally,  and  upon  a  promise  im- 
plied by  law.3  The  remark  was  admitted  to  be  not  necessary 
to  the  decision,  which  went  upon  an  entirely  distinct  ground, 

1  See  post,  §  197. 

3  Redhead  v.  Cator,  1  Stark.  12  ;  Whitcomb  v.  Kephart,  50  Pa.  St.  85. 
8  Chapin   v.  Lapham,  20  Pick.  467,  per  Shaw,  C.  J.     But  see  the  re- 
marks of  the  same  judge  in  Alger  v.  Scoville,  1  Gray  391. 


CH.    X.]  GUARANTIES.  195 

namely,  that  the  credit  was  given  solely  to  the  defendant; 
moreover,  of  the  two  cases  referred  to  in  support  of  it,  one 
does  not  seem  to  justify  it,  and  the  other  has  been  substan- 
tially overruled.1  They  belong,  however,  to  a  class  of  de- 
cisions important  to  be  examined,  as  having  been  assumed  to 
afford  the  foundation  for  a  doctrine  that  a  promise  to  indem- 
nify is  not  within  the  statute. 

§  159.  Where  the  promise  is  to  indemnify  against  the  con- 
sequences of  such  an  act  or  engagement  on  the  part  of  the 
promisee  as  involves  no  duty  or  liability  on  the  part  of  any 
third  person  also  to  indemnify  him,  the  statute  manifestly 
does  not  apply;  for  there  is  no  liability  of  a  third  party, 
either  express  or  implied,  to  which  the  defendant's  promise 
to  indemnify  can  be  collateral.  Thus,  where  the  indorser  of 
a  dishonored  bill  requested  a  subsequent  indorsee  to  sue  the 
acceptor,  and  the  latter  did  so,  it  was  held  that  he  could 
recover  upon  the  oral  promise  of  the  other  to  indemnify  or 
reimburse  him  for  the  expenses  of  the  suit.2  So,  where  the 
plaintiff  at  the  defendant's  request  has  made  a  note  to  a  third 
party,  the  promise  of  the  defendant  to  save  the  maker  from 
payment  of  the  note  is  clearly  original  and  not  within  the 
statute.3  And  so  with  a  promise  to  indemnify  the  plaintiff 
against  a  suit  to  be  brought  for  a  trespsas  committed  by  him 
at  the  promisor's  instance,  for  the  purpose  of  raising  a  ques- 
tion of  title,4  or  against  a  suit  of  the  same  nature  for  resisting 
payment  of  tithes.6 

§  160.  The  only  case  found  which  stands  opposed  to  the 
rule  stated  above  is  that  of  Winckworth  v.  Mills,  decided  at 

1  Harrison  v.  Sawtel,  10  Johns.  (N.  Y.)  242;  Chapin  v.  Merrill,  4 
Wend.  (N.  Y.)  657.     See  post,  §§  160,  161. 

2  Bullock  v.  Lloyd,  2  Car.  &.  P.  119;  and  see  Howes  v.  Martin,  1  Esp. 
162. 

8  Hull  v.  Brown,  35  Wise.  652 ;  Green  v.  Brookins,  23  Mich.  48. 

4  Marcy  r.  Crawford,  16  Conn.  549;  Allaire  v.  Ouland,  2  Johns.  (N.  Y.) 
Cas.  52.  And  see  Weld  v.  Nichols,  17  Pick.  (Mass.)  538. 

6  Adams  v.  Dansey,  6  Bing.  506.  And  see  also  Goodspeed  v.  Fuller,  40 
Me.  141 ;  Dorwin  v.  Smith,  35  Vt.  69;  Evans  v.  Mason,  1  Lea  (Tenn.)  26 ; 


196  STATUTE   OF  FRAUDS.  [CH.  X. 

nisi  prius,  where  one  Taylor  made  a  promissory  note  to  the 
defendant,  who  indorsed  it  to  another,  who  indorsed  it  to 
the  plaintiff,  and  he,  having  lost  the  original  note,  applied 
to  the  makers,  who  made  a  difficulty  about  paying  it,  where- 
upon the  defendants  verbally  promised  to  indemnify  the 
plaintiff  if  he  would  endeavor  to  enforce  payment  from  the 
maker.  The  action  was  in  part  to  recover  expenses  incurred 
in  such  endeavor,  and  Lord  Kenyon  ruled  that,  as  to  that 
part  which  was  based  on  the  promise  to  indemnify,  plaintiff 
could  not  recover,  because  it  was  a  promise  to  answer  for  the 
debt  and  default  of  another.1  This  decision  apparently  can- 
not be  sustained.  The  promise  clearly  was,  not  to  answer  to 
the  promisee  for  the  debt,  default,  or  miscarriage  of  another, 
but  to  make  up  to  him  any  loss  he  might  sustain  by  his  own 
act,  in  attempting  to  compel  payment  of  the  note  by  the 
maker. 

§  161.  But  there  is  a  large  class  of  cases,  in  which  the 
defendant's  promise  is  or  may  be  expressed  as  a  promise  to 
the  plaintiff  to  indemnify  him  against  the  consequences  of 
some  act  or  undertaking  of  his  own,  while  at  the  same  time 
there  is  an  implied  obligation  on  the  part  of  some  third  person 
also  to  indemnify  him ;  to  which  obligation  the  defendant's 
promise  of  indemnity  is  or  may  be  collateral.  It  is  from 
cases  of  this  class  that  great  confusion  in  the  law  has  arisen, 
because  apparently  of  the  inconsiderate  treatment  of  them  by 
the  courts  as  mere  cases  of  contracts  of  indemnity,  without 
sufficient  regard  to  the  fact  of  the  coexistence  of  the  implied 
obligation  on  the  part  of  the  third  person.  It  is  obvious 
that  they  must  not  be  confounded  with  such  cases  as  we  have 
heretofore  considered,  where  no  such  implied  obligation 

Peck  v.  Thompson,  15  Vt.  637 ;  Fleram  r.  Whitmore,  23  Mo.  430 ;  Stock- 
ing v.  Sage,  1  Conn.  519;  Stark  v.  Raney,  18  Cal.  622;  Tarr  v.  Northey, 
17  Me.  113;  Chapman  v.  Ross,  12  Leigh  (Va.)  565;  Conkey  v.  Hopkins, 
17  Johns.  (N.  Y.)  113;  Faruum  v.  Chapman,  61  Vt.  395  ;  Mays  v.  Joseph, 
34  Ohio  St.  22  ;  Lerch  v.  Gallup,  67  Cal.  595. 
1  Winckworth  v.  Mills,  2  Esp.  484. 


CH.   X.]  GUARANTIES.  197 

coexisted ;  and  that  they  cannot  be  dismissed  as  not  covered 
by  the  statute,  simply  because  the  defendant's  promise  is  in 
form  a  promise  to  indemnify. l  Whether  or  not  in  such  cases 
the  express  promise  of  the  defendant  and  the  coexisting  im- 
plied liability  of  the  third  party  constitute  a  case  of  collateral 
obligation  under  the  Statute  of  Frauds  depends  upon  other 
considerations. 

§  161  a.  As  to  the  English  cases,  the  first  to  be  noticed  is 
Thomas  v.  Cook,  in  the  Queen's  Bench,  1828,  where  the 
plaintiff,  at  the  defendant's  request  and  upon  his  special 
promise  to  indemnify  him,  joined  the  defendant  as  surety  on 
a  bond  of  a  third  party  to  secure  his  debt  to  a  fourth.  The 
case  showed  no  obligation  of  the  third  party  to  the  plaintiff, 
except  that  which  would  arise  by  implication  of  law  upon  the 
plaintiff's  being  actually  damnified  as  his  surety,  and  it  was 
held  that  the  statute  did  not  apply  to  the  defendant's  special 
promise  to  indemnify  the  plaintiff.2  In  Green  v.  Ores  well, 
in  the  Queen's  Bench,  1839,  the  plaintiff  at  the  defendant's 
request,  and  upon  his  special  promise  to  indemnify  him, 
became  bail  for  a  third  party  who  was  arrested  for  debt ;  the 
case,  as  before,  showed  no  obligation  of  the  third  party  to 
the  plaintiff,  except  the  implied  obligation  arising  upon  his 
being  compelled  to  pay ;  but  it  was  held  that  the  defendant's 
special  promise  to  indemnify  him  was  within  the  statute,  upon 
the  ground  (with  another)  that  it  was  collateral  to  the  third 
party's  implied  obligation  to  the  like  extent.8  It  is  to  be 
noticed  that  in  Thomas  v.  Cook  the  plaintiff  and  defendant 
became  co-sureties,  while  in  Green  v.  Creswell  the  defendant 
was  not  himself  on  the  bond ;  and  this  difference  between  the 
facts  of  the  two  cases  has  been  supposed  to  distinguish  them,4 


1  Cheesman  v.  Wiggins,  122  Ind.  352. 

3  Thomas  v.  Cook,  8  Barn.  &  C.  728. 
»  Green  v.  Creswell,  10  Ad.  &  E.  453. 

4  See  Barry  v.  Ransom,  12  N.  Y.  462;  Apgar  v.  Hiler,  24  N.  J.  L.  812; 
Ferrell  v.  Maxwell,  28  Ohio  St.  383      In  the  report  of  Green  t>.  Creswell, 
in  4  Jurist,  169,  the  judges  are  stated  to  have  themselves  referred  to  the 


198  STATUTE   OF  FRAUDS.  [CH.   X. 

upon  the  ground  that  where  the  defendant  is  co-surety  he  is, 
as  such  and  without  any  special  promise,  liable  already  to 
contribute,  and  that  his  special  promise  to  pay  the  whole 
may  be  regarded  as  but  a  matter  of  regulation  of  contribu- 
tion between  the  two  sureties.  But  to  this  there  are  two 
answers :  first,  that  though  called  regulation  of  contribution, 
it  is  really  a  promise  to  pay  what  he  was  not  otherwise  liable 
to  pay  for  a  third  party ;  and,  secondly,  that  he  was  never 
liable  to  contribute  at  all  except  by  force  of  the  relation  of 
co-suretyship  into  which  he  entered,  and  owed  no  antecedent 
debt  or  duty  of  his'  own.  This  distinction  failing,  the  case 
of  Green  v.  Creswell,  so  far  as  it  asserted  that  the  defend- 
ant's special  promise  was  collateral  to  the  third  party's  im- 
plied liability,  and  so  within  the  statute,  must  be  regarded 
as  directly  in  conflict  with  Thomas  v.  Cook. 

§  161  5.  As  an  authority  for  that  doctrine,  however,  Green 
v.  Creswell  has  been  practically  overruled  by  later  English 
cases;  and  the  English  rule  appears  to  be  now  settled  in 
conformity  with  Thomas  v.  Cook.  Cripps  v.  Hartnoll,  in 
the  Queen's  Bench,  1862,  was  the  case  of  a  special  promise 
by  the.  defendant  to  indemnify  the  plaintiff  for  becoming 
surety  on  the  bail-bond  of  a  third  party  arrested  on  a  crimi- 
nal charge.  It  was  held  that  the  defendant's  special  promise 
was  collateral  to  the  third  party's  implied  obligation  to 
indemnify  the  plaintiff,  the  court  placing  their  decision  on 
the  authority  of  Green  v.  Creswell  as  binding  upon  them, 
but  at  the  same  time  doubting  whether  that  case  was  rightly 
decided.1  On  appeal  to  the  Exchequer  Chamber,  the  judg- 
ment was  reversed  upon  the  distinction  taken  by  the  court 
to  save  the  case  from  the  authority  of  Green  v.  Creswell,  that 
here  the  bail-bond  was  to  answer  a  criminal  charge,  and  that 
on  such  a  bond  there  was  no  implied  obligation  of  the  prin- 

difference  of  fact  mentioned  in  the  text,  as  distinguishing  that  case  from 
Thomas  v.  Cook. 

1  Cripps  v.  Hartnoll,  2  Best  &  S.  697;  on  appeal,  4  Best  &  S.  414;  10 
Jurist,  N.  s.  200;  11  Weekly  Rep.  953. 


CH.   X.]  GUARANTIES.  199 

cipal  to  indemnify  his  surety ;  but  the  judges  very  pointedly 
declined  to  be  understood  as  acknowledging  the  decision  in 
Green  v.  Creswell,  where  the  bail-bond  was  in  a  civil  case, 
to  be  right.  The  authority  of  Green  v.  Creswell  was  after 
wards  brought  directly  in  issue  in  Wildes  v.  Dudlow,1  1874, 
before  Vice-Chancellor  Malins,  where  the  question  was 
whether  an  executor  should  be  allowed  to  charge  the  estate 
upon  the  following  case:  his  testator  had  requested  him  to 
make  a  note  jointly  with  the  testator's  son-in-law,  and  for 
his  accommodation,  and  promised  the  executor  to  indemnify 
him  against  loss  by  so  doing ;  and  the  note  having  been  made 
accordingly,  the  executor  was  compelled  to  pay.  The  Vice- 
Chancellor  held  that  the  testator's  promise  of  indemnity  was 
not  within  the  statute,  and  that  the  executor  could  charge 
the  estate ;  and  remarked  that  the  case  of  Green  v.  Creswell 
had  been  overruled,  and  the  law  as  laid  down  in  Thomas  v. 
Cook  restored.  That  the  case  to  which  he  referred  as  over- 
ruling Green  v.  Creswell  really  did  overrule  it,  is  not  true 
without  qualification ; 2  but  the  decision  of  the  Vice-Chancellor 
is  directly  in  conflict  with  it,  and  in  view  of  this,  and  the 
repeated  judicial  criticisms  to  which  it  had  been  previously 
subjected,  it  may  be  considered  that  in  England  the  case  of 
Green  v.  Creswell  is  no  longer  of  authority,  and  that,  as 
first  held  in  Thomas  v.  Cook,  a  defendant's  special  promise 
to  indemnify  a  plaintiff  against  loss  by  becoming  responsible 
for  a  third  person's  performance  of  his  duty  to  a  fourth  is 
not  brought  within  the  statute  by  the  coexistence  of  the  im- 

1  Wildes  v.  Dudlow,  L.  R.  19  Eq.  198. 

2  It  was  the  case  of  Reader  v.  Kingham,  13  C.  B.  N.  8.  344,  in  which 
it  was  held  that  the  third  party's  debt,  which  the  defendant  promised  to 
answer  for,  must  be  (to  come  within  the  statute)  a  debt  to  the  promisee, 
not  a  debt  to  a  fourth  party ;  a  perfectly  sound  doctrine,  supported  by 
several  other  cases.     Post,  §  188.     The  court  in   Green  v.  Creswell  cer- 
tainly asserted  the  contrary,  and  perhaps  put  the  decision  quite  as  much 
upon  that  ground  as  upon  the  ground  that  the  defendant's  promise  was 
collateral  to  the  third  party's  implied  obligation  to  the  promisee,  the 
plaintiff.     But  in  so  far  as  the  case  stood  upon  the  latter  ground,  it  had 
not  been  overruled  up  to  the  time  of  Wildes  v.  Dudlow. 


200  STATUTE   OF  FRAUDS.  [CH.   X. 

plied  liability  of  the  third  party  to  the  plaintiff  in  such  a 
case. 

§  161  c.  In  Massachusetts  the  same  doctrine  prevails,1 
and  so  in  New  York,2  Maine,3  New  Hampshire,4  New 
Jersey,5  Georgia,6  Kentucky,7  Iowa,8  Indiana,9  Minnesota,10 
Wisconsin,11  Nebraska,12  and  apparently  in  Vermont,13  Con- 
necticut,14 and  Michigan.15  In  Pennsylvania,  North  Carolina, 
and  Illinois16  the  doctrine  of  Green  v.  Creswell  is  main- 
tained, and  the  special  promise  to  indemnify  held  to  be  within 
the  statute,  by  reason  of  the  coexisting  implied  obligation 
of  the  third  party;17  in  South  Carolina,18  Tennessee,19 

1  Aldrich  v.  Ames,  9  Gray  76.     And  see  Perley  v.  Spring,  12  Mass. 
297 ;  Chapin  v.  Lapham,  20  Pick.  467 ;  Blake  v.  Cole,  22  Pick.  97. 

2  Sanders  f.Gillespie,  59  N.  Y.  250.     Previous  decisions  in  this  State 
were  conflicting.     See  Harrison  v.  Sawtel,  10  Johns.  242  ;  Chapin  v.  Mer- 
rill, 4  Wend.  657;  Carville  v.  Crane  5  Hill  484;   Kingsley  v.  Balcome, 
4  Barb.  131 ;  Barry  v.  Ransom,  12  N.  Y.  462;  Mallory  v.  Gillett,  21  N.  Y. 
412;  Baker  v.  Dillman,  12  Abb.  Pr.  313.     The  question  has  been  fully 
discussed,  and  the  doctrine  of  Sanders  v.  Gillespie,  following  Thomas  v. 
Cook,  affirmed  in  Tighe  v.  Morrison,  116  N.  Y.  263. 

8  Smith  v.  Say  ward,  5  Greenl.  504. 

4  Holmes  v.  Knights,  10  N.  H.  175;  Cutter  ».  Emery,  37  N.  H.  567; 
Demeritt  v.  Bickford,  58  N.  H.  523. 

8  Apgar  v.  Hiler,  24  N.  J.  L.  812 ;  Cortelyon  ».  Hoagland,  40  N.  J. 
Eq.  1. 

6  Jones  v.  Shorter,  1  Kelly  294. 

7  Dunn  v.  West,  5  B.  Mon.  376;  Lucas  v.  Chamberlain,  8  B.  Mon. 
276 ;  Jones  v.  Letcher,  13  B.  Mon.  363. 

8  Mills  v.  Brown,  11  Iowa  314. 

9  Horn  v.  Bray,  51  Ind.  555  ;  Anderson  v.  Spence,  72  Ind.  315,  over- 
ruling Brush  w.  Carpenter,  6  Ind.  78;  Keesling  v.  Frazier,  119  Ind.  185. 

10  Goetz  v.  Foos,  14  Minn.  265. 

11  Shook  r.  Vanmater,  22  Wise.  532 ;  Vogel  v.  Melms,  31  Wise.  306. 

12  Minick  v.  Huff,  59  N.  W.  Rep.  (Neb.)  795. 
18  Beaman  v.  Russell,  20  Vt.  205. 

14  Reed  v.  Holcomb,  31  Conn.  360 ;  Smith  v.  Delaney,  64  Conn.  264. 

15  Potter  v.  Brown,  35  Mich.  274.     See  Comstock  v.  Morton,  36  Mich. 
277. 

16  Brand  v.  Whelan,  18  Brad.  (111.  App.  Ct.)  186. 

"  Nugent  w.  Wolfe,  111  Pa.  St.  471,  and  cases  cited  ;  Draughan  ». 
Bunting,  9  Ired.  10. 

18  Simpson  v.  Nance,  1  Speers  4. 

19  Macy  t7.  Childress,  2  Tenn.  Ch.  438. 


CH.    X.]  GUARANTIES.  201 

Missouri,1  Alabama,2  and  Ohio8  the  question  seems  to  be 
unsettled. 

§  162.  It  would  be  unprofitable  to  trace  the  course  of  the 
American  decisions  here  cited.  It  has  manifestly  resulted 
in  the  rejection,  by  the  great  preponderance  of  authority,  of 
the  doctrine  of  Green  v.  Ores  well,  and  the  acceptance  of  the 
doctrine  of  Thomas  v.  Cook,  a  result  reached  after  much 
vacillation  on  the  part  of  courts  of  the  same  State,  and  not,  it 
must  be  confessed,  by  reference  to  any  clear  and  satisfactory 
ground  of  principle.  Indeed,  most  of  the  decisions  which 
reject  the  doctrine  of  Green  v.  Creswell  waive  altogether  the 
question  of  principle,  and  put  it  as  a  matter  settled  by 
authority  that  the  "  promise  to  indemnify  "  is  not  within  the 
statute.  In  other  cases  it  is  put  upon  the  ground  that  the 
plaintiff  makes  his  engagement,  relying  upon  the  defendant's 
special  promise,  and  not  upon  the  third  party's  implied  lia- 
bility ;  that  the  former  and  not  the  latter  is  the  foundation 
of  the  special  contract ;  and  that  the  decisive  question  is  to 
whom  credit  was  given  by  the  plaintiff.4  But  as  we  shall 
have  occasion  to  see  hereafter,  the  application  of  the  statute 
cannot  safely  be  determined  by  the  consideration  that  the 
plaintiff  relied  upon  one  obligation  to  himself  rather  than 
upon  another;  or  even  that  he  relied  wholly  upon  the  obliga- 
tion of  the  defendant's  special  promise,  giving  "credit" 
solely  to  him,  if  still  a  third  party  was  really  liable  to  the 
plaintiff  to  the  same  extent.  Ordinarily  the  rule,  that  if 
credit  is  given  only  to  the  defendant  on  his  special  promise 
the  statute  does  not  apply,  is  sound ;  for  ordinarily  the  rule 
is  applied  to  cases  of  property  furnished  or  services  rendered 
to  the  third  party,  and  if  no  credit  is  given  to  him  there  is 

1  Garner  t;.  Hudgins,  46  Mo.  399 ;  Bissig  v.  Britton,  59  Mo.  204. 

2  Brown  v.  Adams,  1  Stew.  51 ;  Godden  v.  Pierson,  42  Ala.  370. 

•  Easter  p.  White,  12  Ohio  St.  219;  Kelsey  ».  Hibbs,  13  Ohio  St.  340; 
Ferrell  v.  Maxwell,  28  Ohio  St.  383. 

4  Holmes  r.  Knights,  10  N.  H.  175.  And  see  a  well-considered  case 
in  Wisconsin,  Vogel  v.  Melms,  31  Wise.  306,  where  this  view  is  ably 
argued  and  the  cases  discussed. 


202  STATUTE   OF   FRAUDS.  [CH.   X. 

no  action  against  him,  and  the  statute  of  course  does  not 
apply.  But  the  troublesome  element  in  the  cases  we  are 
now  considering  is  that  by  the  hypothesis  there  are  or  are  to 
be  two  different  persons  concurrently  liable  to  the  plaintiff 
to  do  the  same  duty.  We  must  look  further  to  find  the  rea- 
son why  the  statute  does  not  apply  in  such  a  case.  And  per- 
haps it  may  be  found  in  this,  that  the  implied  obligation  of 
the  third  party  exists  only  by  force  of  and  as  incidental  to 
the  special  contract  between  the  plaintiff  and  the  defendant. 
The  defendant  promises  the  plaintiff  that,  if  he  becomes  liable 
upon  the  actual  default  of  the  third  party,  he,  the  defendant, 
will  protect  him ;  and  upon  the  plaintiff's  becoming  surety 
accordingly,  the  third  party,  as  a  legal  consequence  thereof, 
becomes  also  bound  to  protect  him.  There  was  not,  however, 
any  independent  obligation  or  debt  or  duty  of  the  third  party 
to  the  plaintiff,  to  which  the  defendant's  promise  came  in 
aid.  And  it  may  well  be  said  that  the  statute  contemplates 
only  obligations  of  the  third  party  previously  existing,  or 
incurred  contemporaneously  with  the  defendant's  special 
promise,  or  afterward,  as  the  case  may  be,  but  always  exist- 
ing or  to  exist  independently  of  any  contract  of  guaranty 
between  the  plaintiff  and  defendant;  an  obligation  which 
exists,  or  may  exist,  whether  any  contract  be  made  between 
the  plaintiff  and  defendant  or  not;  not  an  obligation  which 
comes  into  existence  only  as  a  legal  incident  of  the  contract 
which  they  have  made.  On  this  ground,  it  is  believed,  the 
doctrine  that  the  statute  does  not  apply  to  promises  to  in- 
demnify may  rest ;  at  least  none  so  satisfactory  or  so  consist- 
ent with  the  spirit  of  the  statute  is  suggested  in  any  of  the 


cases. 


§  162  a.  An  analogous  question  arises  when  the  title  to 

1  In  Wildes  v.  Dudlow,  L.  R.  19  Eq.  198,  where  the  statute  was  held 
not  to  apply  to  a  promise  of  indemnity,  Malins,  V.  C.,  says  that  the 
promise  "  was  not  'I  engage  with  you  to  be  answerable  to  you  for  the 
debt  of  Wildes  '  [the  third  party],  because  Wildes  did  not  owe  Dudlow 
[the  promisee]  anything."  See  also  3  Pars.  Cont.  (5th  ed.)  22,  note. 


CH.   X.]  GUARANTIES.  203 

property  is  verbally  warranted  to  a  third  person  by  some  one 
not  the  owner,  as  an  inducement  to  its  purchase.  It  has  been 
held,1  that  the  warranty  of  title  is  in  law  an  undertaking  to 
be  responsible  for  the  fulfilment  by  the  seller  of  his  implied 
warranty  of  title  arising  from  the  sale,  and  is  therefore  within 
the  statute.  It  may  be  doubted,  however,  whether  the 
essence  of  the  transaction  is  not  a  strict  warranty  that  a 
certain  condition  of  things  now  exists,  namely,  that  the 
seller's  title  is  good.  If  this  is  so,  then  clearly  the  matter 
of  future  default  is  not  in  the  minds  of  the  parties,  and  to 
treat  the  transaction  as  a  collateral  undertaking  within  the 
statute  would  seem  to  be  giving  to  it  an  interpretation  which 
it  was  not  meant  to  have. 

§  163.  It  was  once  held  that  if  a  verbal  guaranty  was  pro- 
spective, that  is,  to  answer  for  a  debt,  default,  or  miscarriage 
not  yet  incurred  or  suffered,  the  statute  did  not  apply; 
because,  at  the  time  the  defendant's  promise  was  made, 
there  was  no  existing  liability  on  the  part  of  another  person 
to  which  it  could  be  collateral.  Such  was  the  decision  of 
Lord  Mansfield  in  Mowbray  v.  Cunningham,  where  the 
promise  was  to  be  responsible  for  goods  to  be  thereafter  sup- 
plied to  a  third  person.2  But  in  the  following  year,  he  ap- 
pears to  have  distinctly  abandoned  that  doctrine,3  and  it  has 
certainly  never  prevailed  since.  Buller,  J.,  in  a  subsequent 
case,  said  that  the  authorities  against  it  were  not  to  be 
shaken ;  at  the  same  time  stating  that,  if  it  were  a  new  ques- 
tion, the  bearing  of  his  mind  would  be  the  other  way,  for 
that  Lord  Mansfield's  reasoning  in  Mowbray  v.  Cunningham 
had  struck  him  very  forcibly.4  There  seems,  however,  to  be 

1  In  re  Tozer's  Estate,  46  Mich.  299. 

8  Mowbray  (or  Mawbray)  v.  Cunningham,  Hilary  Term,  1773,  cited  in 
Jones  v.  Cooper,  infra. 

8  Jones  ?'.  Cooper,  1  Cowp.  227.  See  Parsons  v.  Walter,  cited  in 
Peckham  v.  Faria,  3  Dougl.  14,  note;  Mallet  v.  Bateman,  L.  R.  1  C.  P. 
163;  Mountstephen  ».  Lakernan,  L.  R.  7  Q.  B.  196,  202,  per  Willes,  J. 

4  Matson  v.  Wharam,  2  Term  R.  80.  The  later  doctrine  prevails  in 
the  United  States.  Cahill  ».  Bigelow,  18  Pick.  (Mass.)  369,  which  in  this 


204  STATUTE   OF  FRAUDS.  [CH.  X. 

but  little  difficulty  in  considering  the  guaranty,  in  such  an 
instance,  as  suspended  until  the  debt  to  which  it  is  to  apply 
shall  be  actually  incurred ;  a  view  in  which  these  cases  may 
be  entirely  reconciled  with  Read  v.  Nash ;  for  there,  not  only 
was  there  no  debt  or  liability  incurred  by  any  third  party  at 
the  time  of  the  defendant's  engagement,  but  none  was  ever 
to  be  incurred  after  that  time  to  which  the  defendant's 
engagement  could  attach. 

§  164.  It  is  obvious  that,  if  the  guarantor  was  already  per- 
sonally liable  to  pay  the  debt,  his  engagement  to  pay  it  if  a 
third  person  does  not  cannot  afford  him  protection  on  the 
ground  of  the  Statute  of  Frauds.  Although  in  form  perhaps 
a  guaranty,  it  is  virtually  an  engagement  to  pay  his  own 
debt,  and  is  binding  without  writing.1  The  same  is  true  of 
those  cases  where  the  promise  of  the  defendant  is  to  pay 

respect  overrules  Perley  v.  Spring,  12  Mass.  297;  Matthews  v.  Milton, 
4  Yerg.  (Term.)  579  ;  Cole  v.  Hutchinson,  34  Minn.  410;  Mead  v.  Watson, 
57  Vt.  426.  But  see  Tighe  v.  Morrison,  116  N.  Y.  263. 

1  Hoover  v.  Morris,  3  Ohio  76;  Tarbell  v.  Stevens,  7  Iowa  163.  In 
the  case  of  Macrory  r.  Scott.  5  Exch.  907,  a  judgment  by  consent  had 
been  obtained  by  the  plaintiff  against  the  defendant  on  his  agreement  of 
suretyship  for  Scott  Brothers,  to  secure  the  payment  of  money  due  from 
Scott  Brothers  to  the  plaintiff,  and  to  be  advanced  by  him  to  them.  An 
arrangement  was  made  between  the  plaintiff  and  defendant  and  Scott 
Brothers  that  they  should  be  released  from  their  liability  for  advances 
which  had  been  already  previously  made,  and  that  the  plaintiff  should 
make  them  further  advances,  for  which  the  defendant  agreed  verbally 
that  the  judgment  should  stand  as  security.  In  an  action  on  the  judg- 
ment, after  failure  by  Scott  Brothers  to  repay  these  advances,  it  was 
contended  by  the  defendant  that  his  agreement  to  allow  the  judgment  to 
stand  as  security  therefor  was  within  the  Statute  of  Frauds.  A  majority 
of  the  court  held  that  a  certain  writing  made  by  the  defendant  was  a 
sufficient  memorandum  of  his  agreement:  but  Parke,  B.,  and  Martin,  B., 
took  occasion  to  declare  their  opinion  that  the  statute  did  not  apply  to 
the  defendant's  agreement.  Parke,  B.,  said  that  the  case  fell  within  the 
rule  of  Castling  v.  Aubert  (vide,  post  §§  202,  203).  Martin,  B.,  said: 
"  It  is  not  an  undertaking  to  answer  for  the  debt,  default,  or  miscarriage 
of  another,  but  an  agreement  that  a  certain  existing  obligation  shall  con- 
tinue." Note,  however,  that  the  obligation  of  defendant  to  pay  the  judg- 
ment as  surety  for  the  old  advances  fell  when  the  third  party's  liability 
for  their  advances  was  released. 


CH.   X.]  GUARANTIES.  205 

what  he  was  previously  liable,  only  jointly  with  others,  to 
pay,  as  in  the  case  of  a  verbal  engagement  by  one  partner  to 
pay  a  debt  owing  by  his  firm;  here  the  statute  does  not 
require  the  promise  to  be  in  writing.1  And  the  same  is  true 
of  the  promise  of  one  trustee  to  reimburse  the  cestui  for  the 
default  of  all ; 2  also  of  the  promise  of  one  of  the  owners  of 
a  ship  to  material  men  to  pay  their  claim  for  materials  for 
which  the  ship  was  responsible,  and  which  was  already, 
therefore,  the  promisor's  debt  «w6  modo.B  In  the  converse 
case  of  an  individual  debt  owing  by  one  partner,  the  verbal 
engagement  of  another  partner  to  pay  it  would  not  be  bind- 
ing;4 although  a  ratification  by  the  firm  of  a  debt  con- 
tracted without  authority  by  one  of  its  members  in  the  firm 
name  (such  ratification  being  sufficient  to  make  the  firm  origi- 
nally liable,  as  if  the  authority  had  existed  from  the  begin- 
ning) may  undoubtedly  be  made  by  the  conduct  of  the  firm, 
or  otherwise,  without  writing.6  Where  a  member  of  a  corpo- 
rate body  assumes  to  pay  its  debts,  his  promise,  if  verbal, 
cannot  be  enforced,  there  being  no  pre-existing  liability.6 
It  has  been  held  that  where  an  indorser  who  has  been  dis- 


1  Stephens  v.  Squire,  5  Mod.  205 ;  Howes  v.  Martin,  1  Esp.  162 ;  Files 
v.  McLeod,  14  Ala.  611;  Aiken  v.  Duren,  2  Nott  &  McC.  (S.  C.)  370; 
Durham  v.  Manrow,  2  N.  Y.  541,  per  Strong,  J. ;  Rice  v.  Barry,  2  Cranch 
(C.  C.)  447;  Hopkins  ».  Carr,  31  Ind.  260.     See  Batson  v.  King,  4  Hurl. 
&  N.  739;  Bundy  v.  Bruce,  61  Vt.  619;  Weatherly  v.  Hardman,  68  Ga- 
592;  Loring  v.  Dixon,  56  Texas  75. 

2  Orrell  v.  Coppock,  26  L.  J.  Ch.  269. 

8  Fish  t>.  Thomas,  5  Gray  (Mass.)  45.  See  Headrick  v.  Wiseheart, 
57  Ind.  129. 

4  Taylor  v.  Hillyer,  3  Blackf.  (Ind.)  433  ;  Wagnon  v.  Clay,  1  A.  K. 
Marsh.  (Ky.)  257.  In  Georgia  Co.  v.  Castleberry,  49  Ala.  104,  the  mere 
fact  that  a  corporation  was  composed  of  the  same  persons  as  had  formerly 
made  up  a  partnership  was  held  insufficient  to  make  the  corporation 
liable  on  the  promise  of  its  president  to  pay  a  debt  of  the  firm. 

•  McGill  v.  Dowdle,  33  Ark.  311. 

6  Trustees  of  Free  Schools  v.  Flint,  13  Met.  (Mass.)  539;  Rogers  v. 
Waters,  2  Gill  &  J.  (Md.)  64;  Wyman  v.  Gray,  7  Harr.  &  J.  (Md.)  409; 
Searight  v.  Payne,  2  Tenn.  Ch.  175 ;  Home  National  Bank  v.  Waterman, 
134  111.  461. 


206  STATUTE   OF  FKAUDS.  [CH.   X. 

charged,  for  instance,  by  the  laches  of  the  holder,  renews  his 
engagement  verbally,  this  renewal  is  within  the  statute;1  but 
the  better  doctrine  seems  to  be  that,  inasmuch  as  the  promise 
made  by  an  ordinary  indorser  is  an  original  and  indepen- 
dent promise  to  pay  the  sum  named  in  the  instrument,  upon 
the  contingency  that  the  maker  or  acceptor  fails  to  perform 
his  engagement,  the  indorser's  subsequent  promise  is  but  a 
waiver  of  the  technical  bar  attaching  to  his  former  original 
liability,  and  should  be  treated  as  original  likewise,  and  not 
covered  by  the  statute.2 

§  165.  The  general  principle,  prevailing  in  all  the  cases 
under  this  branch  of  the  Statute  of  Frauds,  is,  that  wherever 
the  defendant's  promise  is  in  effect  to  pay  his  own  debt  to 
the  plaintiff,  though  that  of  a  third  person  may  be  inciden- 
tally discharged,  the  promise  need  not  be  in  writing.  To  this 
principle  is  often  referred  the  common  class  of  cases  where 
the  holder  of  a  bill  or  note  transfers  it  to  his  creditor,  in 
entire  or  partial  satisfaction  of  his  debt,  with  a  verbal  under- 
taking as  to  its  value  or  collectibility.  Upon  this  under- 
taking, the  creditor,  as  is  well  settled,  can  maintain  an 
action,  if  the  note  turn  out  to  be  worth  less  than  the  holder 
had  thus  virtually  warranted  it  to  be.3  The  decision  of  the 

1  Peabody  v.  Harvey,  4  Conn.  119;  Huntington  v.  Harvey,  4  Conn. 
124. 

2  Uhler  v.  Farmers'  Nat.  Bank,  64  Pa.  St.  406.     And  see  U.  S.  Bank 
v.  Southard,  2  Harr.  (N.  J.)  473;  Ashford  v.  Robinson,  8  Ired.  (N.  C.) 
Law,  114. 

8  Losses  v.  Williams,  6  Lans.  (N.  Y.)  228 ;  Johnson  v.  Gilbert,  4  Hill 
(N.  Y.)  178;  Malone  v.  Keener,  44  Pa.  St.  107;  Barker  v.  Scudder,  56 
Mo.  272;  Wyman  p.  Goodrich,  26  Wise.  21 ;  Cardell  v.  McNiel,  21  N.  Y. 
336;  Westcott  v.  Keeler,  4  Bosw.  (N.  Y.)  564;  Mobile  &  Girard  R.  R.  v. 
Jones,  57  Ga.  198;  Bruce  v.  Burr,  67  N.  Y.  237;  Allen  v.  Eighmie,  21 
Hun  (N.  Y.)  559;  Milk  v.  Rich,  15  Hun  (N.  Y.)  178;  Moore  v.  Stovall, 
2  B.  J.  Lea  (Tenn.)  543 ;  Spann  v.  Cochrano,  63  Texas  240;  Morris  v. 
Gaines,  82  Texas  255;  Wilson  v.  Vass,  54  Mo.  App.  221;  Bates  v.  Sabin, 
64  Vt.  511;  Eagle  Machine  Co.  v.  Shattuck,  53  Wise.  455;  King  v. 
Summit,  73  Ind.  312;  Indiana  Mfg.  Co.  v.  Porter,  75  In d.  428 ;  Has- 
singer  v.  Newman,  83  Ind.  124  ;  Darst  v.  Bates,  95  111.  493 ;  Sheldon  v. 
Butler,  24  Minn.  513;  Milks  v.  Rich,  80  N.  Y.  269;  Clopper  v.  Poland, 


CH.   X.]  GUARANTIES.  207 

Supreme  Court  of  Massachusetts  in  Dows  v.  Swett,1  however, 
seems  to  call  for  a  somewhat  more  precise  statement  of  the 
principle  governing  the  class  of  cases  mentioned,  with  which 
it  may,  at  first  sight,  seem  to  be  in  conflict.  In  that  case 
the  defendant  owed  the  plaintiffs  $200  for  goods  sold,  and 
had  given  them  a  due-bill  for  the  amount.  The  defendant 
proposed  to  the  plaintiffs  that  they  should  give  him  up  the 
due-bill,  upon  his  procuring  one  Robinson  to  make  a  promis- 
sory note  in  the  plaintiff's  favor,  which  note  the  defendant 
orally  agreed  that  he  would  pay  at  maturity,  if  Robinson  did 
not.  The  plaintiffs  consented  to  the  arrangement,  and  gave 
up  the  due-bill  to  the  defendant,  who  handed  them  at  the 
same  time  the  note  of  Robinson,  payable  to  their  order. 
After  Robinson's  failure  to  pay  the  note  at  maturity,  this  suit 
was  brought  against  the  defendant  upon  his  verbal  promise. 
The  judge  in  the  Superior  Court,  who  heard  the  case  without 
a  jury,  had  found  for  the  plaintiff  for  the  amount  of  the  note 
with  interest,  "upon  and  by  reason  solely  of  the  verbal 
promise,"  which  promise  "was  not  to  be  considered  as  col- 
lateral to  the  debt  of  another,  but  as  creating  an  original 
obligation  from  the  promisor,  —  a  part  of  the  mode  and  man- 
ner in  which  he  was  to  pay  his  own  debt."  The  judge 
refused  to  rule,  at  defendant's  request,  that  the  plaintiff 
could  not  recover,  and  exception  taken  to  this  refusal  was 
sustained  by  the  Supreme  Court  on  the  ground  that,  upon  the 
facts  shown,  "the  only  direct  liability  was  that  of  Robinson 
upon  his  note ;  and  the  oral  promise  of  the  defendant  to  pay 


12  Neb.  69;  Crane  v.  Wheeler,  48  Minn.  207.  See  Little  v.  Edwards, 
•  69  Md.  499.  In  Taylor  t>.  Soper,  53  Mich.  96,  this  rule  was  extended  to 
cover  the  warranty  by  a  third  party  of  a  note  offered  by  its  holder  in 
payment  of  purchase  money.  See  also  Wilson  v.  Hentges,  29  Minn.  102, 
where  the  same  principle  was  applied  to  the  assignment  by  the  owners 
of  letters  patent  to  the  purchasers  thereof  of  a  contract  of  third  parties  to 
make  the  patented  article  for  a  certain  price,  with  a  verbal  undertaking  of 
the  sellers  to  furnish  the  articles  at  that  price,  if  the  third  party  failed 
to  do  so. 

1  Dows  v.  Swett,  120  Mass.  322. 


208  STATUTE   OF  FKAUDS.  [CH.    X. 

that  note,  if  Robinson  did  not,  was  a  collateral  promise  to 
pay  Robinson's  debt,  and  as  such  within  the  Statute  of 
Frauds. "  * 

§  165  a.  In  this  case,  then,  although  the  promise  of  the 
defendant  was  made  in  the  course  of  a  transaction  entered 
into  for  the  purpose  of  paying  his  own  debt,  it  was  held  to 
be  within  the  statute.  But  the  distinguishing  feature  of  the 
case  is  in  the  fact  that  the  defendant  was  not  the  owner  or 
holder  of  the  note,  and  consequently  there  was  no  transfer 
by  him  to  the  plaintiffs  of  any  property  of  his  in  satisfaction 
of  his  debt;  whereas  the  class  of  decisions  first  spoken  of 
stands  upon  the  doctrine  that  when  the  owner  of  a  promissory 
note  prevails  upon  another  to  accept  it  in  lieu  of  so  much 
money,  by  what  is  virtually  a  warranty  of  the  money  value 
of  the  note  so  transferred,  the  transaction  is  like  that  of  the 
transfer  of  any  other  property,  with  a  promise  that,  if  the 
transferee  cannot  get  a  certain  sum  for  it,  the  other  will 
make  up  the  deficiency. 

§  166.  Turning  now  to  the  language  of  the  statute  as  to 
the  nature  of  the  promise  to  which  it  applies,  we  observe  that 
the  words  are  "any  special  promise."  This  term  "special  " 
seems  to  have  no  other  effect  than  to  show  that  express 
promises  are  referred  to,  and  not  promises  implied  by  law. 
To  the  latter,  whatever  their  nature,  the  statute  does  not 
apply.2 

§  166  a.  Under  this  exception  may  be  conveniently  treated 
a  class  of  cases  of  frequent  occurrence,  growing  out  of 
arrangements  by  which  one  man,  usually  in  consideration  of 
the  transfer  of  property  to  him  by  another,  undertakes  to  pay 

1  The    decision  was   reaffirmed  in  Dows  v.    Swett,    134   Mass.   140. 
The  count  therein  speaks  of  the  note  being  transferred  by  the  defend- 
ant to  the  plaintiff,  but  it  is  clear  from  the  statement  of  the  case  that 
such  was  not  the  fact. 

2  Per  Hosmer,  C.  J.,  in  Sage  v.  Wilcox,  6  Conn.  81;  Allen  v.  Pryor, 
3  A.  K.  Marsh.  (Ky.)  305;  Pike  v.  Brown,7  Gush.  (Mass.)  133,  per  Shaw, 
C.  J.;  Goodnow  v.  Gilbert,  9  Mass.  510;  Urquhart  v.  Brayton,  12  R.  I. 
169. 


CH.    X.J  GUARANTIES.  209 

the  latter's  debts.  Upon  this  state  of  things  two  questions 
arise :  whether  the  arrangement  gives  to  a  person  to  whom 
such  a  debt  is  due  the  right  to  bring  suit  for  it  against  the  man 
with  whom  his  debtor  has  made  the  arrangement  in  question ; 
and  whether,  having  such  a  right,  he  can  maintain  an  action 
upon  it  in  the  absence  of  the  proof  required  by  the  Statute  of 
Frauds.  The  second  question  is  thus  dependent  upon  the 
first,  and  cannot  arise  if  that  be  answered  in  the  negative. 
In  England  it  is  definitely  settled  that  the  creditor  has  no 
right  of  action,  upon  the  general  principle  that  no  one  can 
sue  upon  a  contract  to  which  he  is  not  a  party,  or,  as  is  often 
said,  to  the  consideration  of  which  he  is  a  stranger.1  In 
Connecticut  the  right  of  the  creditor  to  sue  has  been  dis- 
tinctly denied,2  while  in  North  Carolina  and  Tennessee  the 
question  seems  an  open  one.3  In  Massachusetts  the  tendency 
of  the  later  decisions  is  towards  a  return  to  the  English  rule, 
though  the  right  of  the  creditor  to  sue  had  previously  been 
declared  to  be  well  established  in  that  State.4  In  the  courts 
of  the  other  States  the  creditor's  right  to  sue  is  generally 
recognized.5 

§  166  b.  It  being  permitted  to  the  creditor  to  sue,  is  his 
right  to  recover  controlled  by  the  Statute  of  Frauds?  The 
decided  weight  of  authority  is  to  the  effect  that  it  is  not,  but 
very  different  reasons  for  this  conclusion  have  been  given  by 
different  courts.  A  case  which  has  been  often  cited  is  that 
of  Barker  v.  Bucklin,  in  New  York,  where  the  facts  were  that 
the  defendant's  brother  owed  the  plaintiff  a  sum  of  money, 

1  Jones  v.  Robinson,  1  Exch.  456,  per  Parke,  B. ;  Tweddle  v.  Atkinson, 
1  Best  &  S.  393. 

2  Clapp  v.  Lawton,  31  Conn.  95.     See  Packer  v.  Benton,  35  Conn. 
343. 

8  See  Rice  v.  Carter,  11  Ired.  298;  Styron  v.  Bell,  8  Jones  222;  Camp- 
bell v.  Findley,  3  Humph.  330 ;  Brice  r.  King,  1  Head  152. 

4  See  Exchange  Bank  v.  Rice,  107  Mass.  37 ;  Carr  v.  Nat.  Security 
Bank,  107  Mass.  45;  Brewer  v.  Dyer,  7  Cush.  337. 

6  Wood  v.  Moriarty,  15  R.  I.  518.  See  Sonstiley  v.  Keeley,  7  Fed. 
Rep.  447. 

14 


210  STATUTE   OF  FRAUDS.  [CH.   X. 

and,  being  pressed  for  payment,  delivered  to  the  defendant  a 
pair  of  horses  valued  at  a  price  somewhat  less  than  the 
amount  of  the  debt,  and  the  defendant  agreed  to  pay  the 
amount  of  the  price  to  the  plaintiff,  on  account  of  his  demand 
against  his  brother.  As  the  declaration  was  upon  a  promise 
made  to  the  plaintiff,  while  the  only  promise  shown  by  the 
evidence  was  made  to  the  brother,  a  nonsuit  was  entered  on 
account  of  the  variance.  The  remarks  of  the  court,  however, 
(Jewett,  J.,  delivering  the  opinion,)  are  clear  to  the  effect 
that,  had  the  declaration  been  properly  framed,  the  statute 
would  not  have  been  a  bar  to  the  action.  They  say :  "  It  was 
not  a  promise  to  answer  for  the  debt  of  another  person  but 
merely  to  pay  the  debt  of  the  party  making  the  promise  to 
a  particular  person,  designated  by  him  to  whom  the  debt 
belonged,  and  who  had  a  right  to  make  such  payment  a  part  of 
the  contract  of  sale.  Such  promise  was  no  more  within  the 
Statute  of  Frauds  than  it  would  have  been  if  the  defendant 
had  promised  to  pay  the  price  of  the  horses  directly  to  his 
brother,  of  whom  he  purchased  them. "  1  The  theory  here 
suggested,  that  the  defendant's  promise  was  to  pay  his  own 
debt,  has  been  adopted  in  analogous  cases  by  the  courts  of 
New  York  and  several  other  States,  and  the  statute  held  not 
to  apply.2  In  several  cases  where  the  promise  to  the  debtor 


1  Barker  v.  Bucklin,  2  Denio  61. 

2  Seaman  v.  Hasbronck,  35  Barb.  151;  Dearborn  o.   Parks,  5  Greenl. 
(Me.)  81 ;  Howe  v.  Whittier,  21  Me.   545;  Maxwell  v.  Haynes,  41  Me. 
559;  Brown  v.  Strait,  19  111.  88;  Rabbermann  v.  Wiskamp,  54  111.  179; 
Berry  v.   Doremus,  30  X.  J.  L.  399;  Taylor  v.  Preston,  79  Pa.  St.  436; 
Johnson  v.   Knapp,  36  Iowa  616;  Mason  v.  Hall,  30  Ala.  599;  Mitchell 
v.  Griffin,  58  Ind.  559;  Tisdale  v.  Morgan,  7  Hun  (N.  Y.)  583;  Williams 
v.  Little,  35  Me.  323;  Welch  v.  Kenney,  49  Cal.  49;  Besshears  v.  Rowe, 
46  Mo.  501 ;  Casey  v.  Miller,  32  Pac  Rep.  (Idaho)  195 ;  Struble  v.  Hake, 
14  Brad.  (111.  App.  Ct.)  546 ;  Mathers  v.  Carter,  7  Brad.  (111.  App.  Ct.) 
225;  Edenfield  v.  Canady,  60  Ga.  456;  Silsby  v.  Frost,  3  Wash.  Terr. 
(N.  8.)  388;  Grant  r.  Pendery,  15  Kansas  *236;  Phelps  v.  Rowe,  75  Hun 
(N.  Y.)  414;  Keyes  v.  Allen  &  Maynard,  65  Vt.  667;  Beardslee  v.  Morgner, 
4  Mo.  App.  139;  Lee  v.  Porter,  18  Mo.  App.  377;  Dobyns  v.  Rice,  22  Mo. 


CH.   X.]  GUAEANTIES.  211 

was  made  a  part  of  a  contract  of  sale  by  him  to  the  promisor, 
it  has  been  held  that  the  property  thus  transferred  should  be 
treated  as  a  fund  in  the  hands  of  the  transferee,  charged  with 
the  payment  of  the  debts,  and  held  in  trust  for  the  creditors.1 
In  a  case  in  Kentucky,  the  statute  was  said  not  to  apply 
because  the  promise  was  made  to  the  debtor.2  In  New 
Hampshire  and  Rhode  Island  it  has  been  said  that  the  assent 
of  the  creditor,  before  suit  brought,  to  the  arrangement 
between  his  former  debtor  and  the  defendant  who  has  agreed 
to  pay  the  debt,  operates  as  a  discharge  of  the  original 
debtor,  and  thus,  upon  a  principle  hereinafter  discussed,3 
takes  the  transaction  out  of  the  operation  of  the  statute.4 
Again,  it  has  been  said  that  the  defendant's  promise  is  made 
to  the  debtor  as  agent  of  his  creditor,  the  plaintiff,  and  thus 
in  substance  to  the  plaintiff  himself,  a  view  of  the  trans- 
action which  would  bring  it  within  the  Statute  of  Frauds ; 
but  in  the  cases  where  this  opinion  was  expressed  the  prom- 
ise was  in  writing.  The  opinion  of  Robertson,  C.  J.,  in 

App.  448 ;  Bateman  v.  Butler,  124  Ind.  223 ;  Mulcrone  v.  American  Co., 
55  Mich.  622;  Estabrook  v.  Gebhart,  32  Ohio  St.  415;  Smart  v.  Smart, 
97  N.  Y.  559;  Howell  v.  Field,  70  Ga.  592;  Sapp  v.  Faircloth,  70  Ga. 
690 ;  Clay  v.  Tyson,  19  Neb.  530.  See  Sweatman  v.  Parker,  49  Miss. 
19;  Harris  v.  Young,  40  Ga.  65;  Runde  v.  Runde,  58  111.  232;  Meyer 
r.  Hartmann,  72  111.  442 ;  Crosby  v.  Jeroloman,  37  Ind.  264 ;  Helms  r. 
Kearns,  40  Ind.  124;  Crim  t».  Fitch,  53  Ind.  214;  Buchanan  v.  Padelford, 
43  Vt.  64  ;  Putney  v.  Farnham,  27  Wise.  187;  Balliet  v.  Scott,  32  Wise. 
174;  Wynn  r.  Wood,  97  Pa.  St.  216;  Sweet  v.  Colleton,  96  Mich.  391. 

i'Townsend  r.  Long,  77  Pa.  St.  143;  Huber  v.  Ely,  45  Barb.  (N.  Y.) 
169.  See  Fullam  v.  Adams,  37  Vt.  391 ;  Urquhart  v.  Brayton,  in  the 
Supreme  Court  of  Rhode  Island,  July,  1878,  6  Reporter  601,  per  Potter,  J. 
See  post,  §  206.  This  seems  to  be  the  only  ground  upon  which  a  recovery 
would  be  allowed  in  Massachusetts.  See  Exchange  Bank  v.  Rice,  107 
Mass.  37 ;  Carr  v.  Nat.  Security  Bank,  107  Mass.  45. 

2  Spadone  v.  Reed,  7  Bush  455.  This  reasoning  is  adopted  also  by 
Mr.  Throop,  Val.  Verb.  Agr.  §  391. 

«  Post,  §  193. 

4  Warren  v.  Batchelder,  16  N.  H.  580 ;  Urquhart  v.  Brayton,  6  Re- 
porter 601.  See  Lang  v.  Henry,  54  N.  H.  57 ;  Lindley  v  Simpson,  45 
111.  App.  Ct.  648. 


212  STATUTE   OF  FRAUDS.  [CH.   X. 

Connor  v.  Williams,1  in  the  New  York  Superior  Court,  sug- 
gests what  appears  to  be  a  satisfactory  ground  for  holding 
that  the  statute  does  not  apply  to  transactions  of  the  class 
under  consideration.  The  promise  is  made  to  the  debtor,  and 
the  consideration  for  it  moves  wholly  between  him  and  his 
promisor.  The  only  interest  which  the  creditor  has  in  the 
transaction  between  them  arises  by  implication  from  the  fact 
of  his  relation  to  the  debtor;  and  it  may  well  be  said  that 
the  law  imposes  upon  the  promisor  the  duty  of  recognizing 
that  interest,  when  he  makes  his  bargain  with  the  debtor. 
He  is  held  by  law  to  render  himself  liable  to  the  creditor, 
and  as  that  obligation  arises  only  by  implication,  the  statute 
does  not  apply.2 

§  167.  The  Supreme  Court  of  New  York  appears  to  have 
at  one  time  departed  from  the  rule  suggested  by  Barker  v. 
Bucklin,  or,  at  any  rate,  unsettled  the  reasoning  on  which  it 
rests.  One  Rowley  owed  the  plaintiff  $87,  and  the  defendant 
owed  Rowley  $150.  On  a  settlement  between  Rowley  and 
the  defendant,  the  latter  gave  the  former  his  note  for  all  he 
owed  him  except  $87,  which  he  promised  him  verbally  to 
pay  to  the  plaintiff.  He  afterward  refused  to  do  so,  and  the 
plaintiff  brought  assumpsit  upon  the  promise,  as  for  his  ben- 
efit. At  the  trial  a  motion  for  a  nonsuit  was  denied,  and  the 
plaintiff  had  a  verdict.  On  error,  the  court  drew  a  distinc- 
tion between  the  present  case  and  Barker  v.  Bucklin,  to 
which  they  were  referred:  in  the  latter,  it  was  said,  the 
defendant  had  in  effect  received  money  for  the  plaintiff's 
use,  the  debtor  having  sold  property  to  the  defendant  on  his 
agreeing  to  pay  the  price  of  it  to  the  plaintiff;  but  here,  it 
was  added,  "the  defendant  received  nothing  for  the  plain- 

1  Conner  v.  Williams,  2  Rob.  46. 

2  See  ante,  §  166.     As  to  the  promise  or  duty  arising  solely  by  impli- 
cation, see  Lawrence  v.  Fox,  20  N.  Y.  268,  per  Gray,  J.  ;  Brewer  v.  Dyer, 
7  Gush.  (Mass.)   337,  per  Bigelow,  C    J. ;    Perry  v.  Swasey,  12  Cash. 
(Mass.)  36,  per  Shaw,  C.  J. ;  Urquhart  r.  Brayton,  6   Reporter  601,  per 
Durfee,  C.  J.;  Reynolds  r.  Lawton,  62  Hun  (N.  Y.)  596. 


CH.    X.]  GUARANTIES.  213 

tiff's  use.  He  had  previously  had  the  benefit  of  the  labor  of 
Rowley,  for  which  he  still  owed  him.  Rowley  gave  the 
defendant  no  receipt,  and  no  discharge  from  his  indebtedness. 
He  placed  nothing  in  the  hands  of  the  defendant  for  the 
plaintiff.  If  he  had  received  from  the  defendant  all  the 
money  due  to  him,  and  then  had  paid  back  to  the  defendant 
$87  for  the  plaintiff,  —  the  defendant  agreeing  to  pay  it  to 
the  plaintiff,  —  this  action  could  have  been  maintained. 
And  such  payment  would  not  have  been  a  mere  form.  It 
would  have  changed  the  substantial  rights  of  the  parties  to 
the  contract.  It  would  have  discharged  Rowley's  claim 
against  the  defendant  for  the  previous  labor,  which,  as  the 
business  was  in  fact  transacted,  was  left  unpaid."1  It  is 
difficult  to  see  the  soundness  of  any  such  distinction.  If  the 
defendant  had  paid  Rowley's  debt  to  the  plaintiff  according 
to  his  agreement,  it  would  have  been  a  full  defence  to  any 
subsequent  action  by  Rowley  for  that  amount,  as  due  to  him 
upon  the  old  account.  The  sole  difference  between  this  case 
and  Barker  v.  Bucklin  seems  to  be,  that  there  the  debt  was 
incurred  contemporaneously  with,  while  here  it  was  incurred 
some  time  previously  to,  the  making  of  the  defendant's  prom- 
ise to  pay  the  amount  of  it  to  the  plaintiff.  In  both  cases  it 
was  understood  between  the  defendant  and  the  third  person 
that  the  former's  debt  was  to  be  discharged  by  paying  the 
amount  to  the  latter's  creditor.  Later  decisions  in  New  York 
have  rejected  the  distinction  as  to  the  time  of  incurring  the 
debt  which  the  defendant  undertook  to  pay  to  the  plaintiff, 
and  have  affirmed  the  law  as  held  in  Barker  v.  Bucklin.2 

§  168.  The  views  expressed  in  Barker  v.  Bucklin  afford  an 
explanation  of  a  series  of  decisions  in  New  York,  in  which 
judges  have  very  broadly  applied  the  rule,  repeatedly  above 
referred  to,  that  any  new  and  distinct  consideration  passing 
between  the  creditor  and  the  guarantor  took  the  latter's 

1  Blunt  v.  Boyd,  3  Barb.  212. 

8  Barker  v.  Bradley,  42  N.  Y  316;  Meriden  Britannia  Co.  v.  Zingsen, 
48  N.  Y.  247 ;  Cox  v.  Weller,  6  Thorap.  &  C.  309. 


214  STATUTE   OF  FRAUDS.  [CH.  X, 

promise  out  of  the  statute,  though  the  original  debtor  con- 
tinued liable ;  a  doctrine  which,  by  its  too  free  and  unquali- 
fied assertion,  has  done  much  to  darken  and  complicate  the 
law  upon  this  branch  of  the  statute.1  A  brief  review  of  those 
decisions,  therefore,  seems  to  be  advisable. 

§  169.  One  of  the  most  conspicuous  among  them  is  Farley 
v.  Cleveland,2  decided  in  the  Supreme  Court  in  1825.  There 
the  defendant  verbally  promised  to  pay  the  plaintiff  the  debt 
which  a  third  person  owed  him,  in  consideration  of  that  per- 
son's delivering  to  the  defendant  a  quantity  of  hay  to  the 
value  of  the  debt.  The  court,  in  Barker  v.  Bucklin,  refer  to 
this  case,  and  show  clearly  that  the  Statute  of  Frauds  had  no 
application  to  it,  because,  in  point  of  fact,  the  defendant's 
engagement  was  only  to  pay  to  the  plaintiff  the  money  which 
he  would  have  otherwise  been  obliged  to  pay  to  his  own  imme- 
diate creditor  for  the  hay  he  received  from  him,  and  the  only 
question  was,  whether  the  plaintiff,  being  a  stranger  to  the 
consideration,  could  maintain  a  suit  upon  that  engagement. 
Very  similar  is  the  case  of  Ellwood  v.  Monk,3  in  the  same 
court  in  1830,  where  the  defendant,  in  consideration  that 
Johannes  Monk  delivered  to  him  certain  valuable  property, 
verbally  promised  to  pay  three  notes  of  Johannes  held  by  the 
plaintiff.  The  decision,  to  the  effect  that  the  statute  did  not 
apply,  was  put  upon  the  ground  of  a  new  and  distinct  con- 
sideration passing  between  the  parties  to  the  guaranty,  and 
Farley  v.  Cleveland  was  cited  as  authority  to  that  point. 
But  obviously  it  may  be  supported  upon  the  ground  that  the 
defendant  had  purchased  the  property  of  Johannes  in  consid- 
eration of  the  amount  of  the  latter's  debt,  and  that  he  was  only 

1  This  doctrine  will  be  found  separately  discussed  hereafter,  §§  207, 
et  seq. 

2  Farley  v.  Cleveland,  4  Cowen  432,  afterwards  affirmed  by  the  Court 
for  the  Correction  of  Errors,  but  the  report,  9  Cowen  639,  does  not  state 
the  grounds  of  the  affirmance.      See  this  case   explained  in   Prime   «. 
Koehler,  New  York  Court  of  Appeals,  8  Reporter  244. 

8  Ellwood  v.  Monk,  5  Wend.  235.     But  see  Furbish  v.  Goodnow,  98 
Mass.  297,  discussed  post,  §  214  c. 


CH.   X.]  GUARANTIES.  215 

discharging  his  own  obligation  in  paying  the  plaintiff.  The 
earlier  case  of  Skelton  v.  Brewster,1  in  which,  in  considera- 
tion of  a  third  party's  delivering  to  the  defendant  all  his 
household  goods,  the  latter  promised  to  pay  a  debt  for  which 
the  third  party  had  been  arrested  on  execution,  is  referable  to 
the  same  principle ;  although,  as  the  original  debtor  was  by 
the  agreement  discharged,  there  would  seem  to  be  no  reason 
for  applying  the  statute  at  all.  In  a  case  where  a  first  and 
second  indorsee  of  a  promissory  note  were  informed  by  the 
maker,  before  it  came  due,  that  he  would  not  be  able  to  pay 
it  at  maturity,  and  all  three  agreed  that  the  maker  should 
assign  his  property  to  the  indorsers,  and  that  they  should 
pay  the  note  and  look  to  the  assignment  for  remuneration, 
which  was  accordingly  done,  it  was  decided  that,  on  account 
of  the  new  consideration  thus  moving  to  the  indorsers,  their 
engagement  to  pay  the  holder  of  the  note  was  original  and 
not  collateral,  and  that  consequently  the  statute  did  not 
apply.  But  there  appears  to  be  no  difficulty  in  considering 
the  transaction  as  a  purchase  of  the  property  with  an  engage- 
ment to  pay  the  price  to  the  plaintiff,  the  creditor  of  the 
vendor,  the  purchasers  taking  the  risk  of  realizing  from  the 
property  a  less  amount  than  its  estimated  value.2 

§  170.  Other  decisions  in  New  York,  which  at  first  sight 
appear  to  conflict  with  these  views,  are  entirely  reconcilable 
with  them,  when  carefully  applied.  Thus,  in  Jackson  v. 
Rayner,8  the  defendant  told  the  plaintiff  that  he  had  taken 
an  assignment  of  a  third  party's  property  and  meant  to  pay 
his  debts,  and  would  pay  the  debt  owing  by  him  to  the  plain- 
tiff. The  defendant  had  not  contracted  a  debt  by  becoming 
such  assignee,  the  only  promise  shown  being  an  express  one 
to  the  plaintiff  to  pay  the  debt  of  a  third  person.  And 
the  court  held  it  to  be  within  the  statute,  the  obligation  of 

1  Skelton  v.  Brewster,  8  Johns.  376. 

2  Westfall  v.  Parsons,  16  Barb.  645. 

8  Jackson  v.  Rayner,  12  Johns.  291.  See  this  case,  post,  §  187,  note. 
See  also  Simpson  v.  Patten,  4  Johns.  422. 


216  STATUTE   OF  FRAUDS.  [CH.    X. 

the  third  person  not  appearing   to  have  been   extinguished 
thereby. 

§  171.  The  doctrine  stated  in  Barkers.  Bucklin  is  directly 
sustained,  and  the  proper  application  of  the  rule,  saving  from 
the  statute  those  promises  which  are  founded  upon  an  inde- 
pendent consideration,  may  perhaps  be  also  discovered  in  the 
earlier  case  of  Gold  v.  Phillips,  in  the  same  State.  There  the 
defendants,  in  part  consideration  of  the  sale  of  a  farm  to 
them  by  one  Wood,  gave  their  bond  binding  themselves  to 
pay  certain  debts  and  judgments  against  Wood,  and  also  a 
debt  due  from  Wood  to  the  plaintiffs,  and  wrote  to  the  plain- 
tiffs that,  by  arrangement  with  Wood,  they  were  to  be  account- 
able for  the  debt  due  to  them.  The  court  said,  "  The  promise 
of  the  defendants  was  not  within  the  Statute  of  Frauds.  It 
had  no  immediate  connection  with  the  original  contract,  but 
was  founded  on  a  new  and  distinct  consideration.  The  dis- 
tinction noticed  in  Leonard  v.  Vredenburgh  J  applies  to  this 
case,  and  takes  it  out  of  the  statute.  The  defendants  made 
the  promise  in  consideration  of  a  sale  of  lands  made  to  them 
by  Aaron  Wood ;  and  they  assumed  to  pay  the  debt  of  the 
plaintiffs,  as  being,  by  arrangement  with  Wood,  part-payment 
of  the  purchase-money.  Here  was  a  valid  assumption  of 
the  debt  of  Aaron  Wood. "  2  The  decision  was  undoubtedly 
correct ;  though  not  simply  because  the  defendant's  promise 
was  founded  upon  a  new  and  distinct  consideration.  When 
the  reception  of  the  consideration  from  the  third  person  is 
in  such  manner  as  to  create  an  absolute  debt  to  him  from  the 
defendant,  the  promise  of  the  latter  to  pay  the  original  debt 
to  the  same  amount  imposes  upon  him  a  new  liability,  but  it 


1  Leonard  v.  Vredenburgh.  8  Johns.  (N".  Y.)  29.  This  appears  to  have 
been  the  first  American  case  in  which  the  doctrine  was  announced  that 
a  new  consideration  moving  between  the  parties  to  the  guaranty  takes  it 
out  of  the  statute. 

3  Gold  v.  Phillips,  10  Johns.  414 ;  affirmed  in  Mallory  v.  Gillett,  21 
N.  Y.  416.  But  see  Furbish  v.  Goodnow,  98  Mass.  297,  discussed  post, 
§  214  c.  See  Winn  v.  Hillyer,  43  Mo.  App.  139. 


CH.   X.]  GUARANTIES.  217 

is  not  under  a  special  promise,  and  there  is  no  new  liability 
entered  into  in  the  way  of  a  mere  guaranty. 

§  172.  Under  this  same  general  head  it  would  seem  proper 
to  place  the  numerous  cases  which  hold  that  a  verbal  accept- 
ance of,  or  a  verbal  promise  to  accept,  a  bill  of  exchange,  is 
not  within  the  statute,  where  the  promisor  holds  funds  of 
the  drawer  to  meet  it.  Here  no  new  obligation  is  imposed 
upon  the  promisor.  He  owes  the  drawer  the  amount  of  the 
funds  in  his  hands,  and  by  agreement  with  him,  recognized 
by  the  payee,  he  pays  the  drawer  by  paying  his  creditor.1 

§  172  a.  In  the  case  of  Townsley  v.  Sumrall,2  the  Su- 
preme Court  of  the  United  States  held  that  where  the 
defendant,  in  consideration  that  the  plaintiff  would  purchase 
a  bill  already  drawn  or  to  be  thereafter  drawn,  and  as 
an  inducement  to  the  purchase,  verbally  promised  to  accept 
the  bill,  and  a  bill  was  drawn  and  purchased  upon  the  credit 
of  such  promise  for  a  sufficient  consideration,  such  verbal 
promise  to  accept  was  binding  upon  the  defendant.  The 
opinion  says :  "  It  is  an  original  promise  to  the  purchaser, 
not  merely  a  promise  for  the  debt  of  another;  and  having  a 
sufficient  consideration  to  support  it,  in  reason  and  justice 
as  well  as  in  law,  it  ought  to  bind  him.  It  is  of  no  conse- 
quence that  the  direct  consideration  moves  to  a  third  person, 
as  in  this  case  to  the  drawer  of  the  bill ;  for  it  moves  from 
the  purchaser  and  is  his  inducement  for  taking  the  bill.  He 
pays  his  money  upon  the  faith  of  it,  and  is  entitled  to  claim 

1  Pillans  v.  Van  Mierop,  3  Burr.  1663;  Grant  ».  Shaw,  16  Mass.  341; 
Shields  P.  Middleton,  2  Cranch  (C.  C.)  205;  Pike  v.   Irwin,  1    Sand. 
(N.  Y.)  14;  Strohecker  v.  Cohen,  1  Speers  (S.  C.)  Law  349;  Leonard  v. 
Mason,  1  Wend.  (N.  Y.)  522;  Raborg  v.  Peyton,  2  Wheat.  (U.  S.)  385; 
Townsley  v.  Sumrall,  2  Peters  (U.  S.)  170;  Nelson  v.  First  Nat   Bank  of 
Chicago,  48  111.  36;   O'Donnell  v.  Smith,  2  E.  D.  Smith   (N.  Y.)  124  ; 
Spalding  v.  Andrews,  48  Pa.   St.  411;   Laflin  &   Rand  Powder  Co.  v. 
Sinsheimer,  48  Md.  411;  Walton  ».  Mandeville,  56  Iowa  597;  Louisville 
R.  R.  v.  Caldwell,  98  Ind.  245;  Espalla  v.  Wilson,  86  Ala.  487  ;  Neumann 
v.  Shroeder,71  Texas  81;  Kohn  v.  First  National  Bank,  15  Kansas  *  428; 
In  re  Goddard's  Estate,  29  Atl.  Rep.  (Vt.)  634. 

2  2  Peters,  170,  182. 


218  STATUTE   OF   FKAUDS.  [CH.   X. 

the  fulfilment  of  it.  It  is  not  a  case  falling  within  the 
objects  or  the  mischiefs  of  the  Statute  of  Frauds.  If  A.  says 
to  B.,  pay  so  much  money  to  C.  and  I  will  repay  it  to  you, 
it  is  an  original  independent  promise ;  and  if  the  money  is 
paid  upon  the  faith  of  it,  it  has  been  always  deemed  an 
obligatory  contract  even  though  it  be  by  parol ;  because  there 
is  an  original  consideration  moving  between  the  immediate 
parties  to  the  contract.  Damage  to  the  promisee  constitutes 
as  good  a  consideration  as  benefit  to  the  promisor.  In  cases 
not  absolutely  closed  by  authority,  this  court  has  already 
expressed  a  strong  inclination  not  to  extend  the  operation  of 
the  Statute  of  Frauds  so  as  to  embrace  original  and  distinct 
promises  made  by  different  persons  at  the  same  time  upon 
the  same  general  consideration.  D'Wolf  v.  Rabaud,  1  Peters, 
476.  "i 

§  173.  Having  now  seen  that  the  promise  of  a  guarantor, 
within  the  Statute  of  Frauds,  must  be  a  special  or  express 
promise,  raising  a  liability  which  did  not  exist  already,  and 
intended  primarily  to  discharge  that  liability,  our  next 
inquiry  is,  what  engagements,  if  not  in  form  promises  to  pay 
another's  obligation,  are  substantially  so;  for  the  statute 
being  designed  to  repress  fraud,  cannot  be  evaded  in  its 
spirit  by  mere  changes  in  the  language  of  parties,  or  by  the 
form  under  which  they  disguise  their  transactions. 

§  174.  In  the  case  of  Carville  v.  Crane,  in  New  York,  the 
defendant  promised,  in  consideration  that  the  plaintiff  at  his 
request  would  sell  and  deliver  a  bill  of  goods  to  third  parties, 
to  indorse  their  note  at  six  months,  for  the  price.  The  case 
was  in  assumpsit  upon  this  promise,  and  came  before  the 
Supreme  Court  on  demurrer ;  and  it  was  decided  to  be  mani- 
festly, in  substance,  an  engagement  to  answer  for  the  debt, 
and  that,  the  promise  not  being  in  writing,  the  action  could 
not  be  sustained.  Cowen,  J.,  delivering  the  opinion  of  the 

i  As  to  D'Wolf  v.  Rabaud,  1  Peters  476,  see  §  175  a.  The  case  of 
Townsley  v  Sumrall,  2  Peters  170,  seems  to  be  in  conflict  with  the  best 
recent  authorities. 


CH.   X.]  GUAEANTIES.  219 

court,  said:  "It  was  a  promise  to  become  their  [the  third 
parties']  surety  for  the  debt.  ...  To  say,  then,  that  this  is 
not  in  effect  a  promise  to  answer  their  debt,  would  be  a  sacri- 
fice of  a  substance  to  sound.  It  would  be  devising  a  formu- 
lary by  which,  through  the  aid  of  a  perjured  witness,  a 
creditor  might  get  round  and  defraud  the  statute.  He  may 
say,  'You  did  not  promise  to  answer  the  debt  due  to  me 
from  A. ;  but  only  to  put  yourself  in  such  a  position  that  I 
could  compel  you  to  pay  it. '  Pray,  where  is  the  difference 
except  in  words. " 1  A  verbal  acceptance  of,  or  a  verbal 
promise  to  accept,  a  bill  of  exchange,  where  the  acceptor  has 
funds  of  the  drawer  in  his  hands,  is,  as  we  have  seen,  entirely 
without  the  operation  of  the  statute,  from  the  consideration, 
that  the  drawee's  engagement  is  in  fact  to  pay  his  own  debt 
to  the  drawer,  the  owner  of  the  funds,  and  perhaps  by  virtue 
of  another  rule  to  be  hereafter  considered ;  namely,  that  the 
promise  to  pay  another's  debt,  contemplated  by  the  statute, 
is  to  pay  it  out  of  the  promisor's  own  estate.  But  there 
seems  to  be  no  sound  reason  why  a  verbal  acceptance  or 
promise  to  accept  for  the  mere  accommodation  of  the  drawer, 
and  without  value  received,  should  not,  upon  the  grounds 
stated  in  Carville  v.  Crane,  be  treated  as  within  the  statute. 
The  acceptor  or  promisor  certainly  puts  himself  in  such  a 
position  that  the  payee  can  compel  him  to  pay  the  debt.  Such 
is  the  opinion  expressed  in  the  same  case,  and  it  seems  to  be 
followed  in  a  subsequent  decision  in  the  Superior  Court  in 
the  same  State,  where,  upon  the  defendant's  offering  to  prove 
that  he  had  no  funds  of  the  drawer  in  his  hands  at  the  time 
of  making  the  promise  to  pay  an  order  to  be  drawn  upon  him, 

1  Carville  v.  Crane,  5  Hill,  484.  And  see  Gallager  v.  Brunei,  6  Cowen 
(N.  Y.)  346;  Mallet  v.  Bateman,  L.  R.  1  C.  P.  163;  Gallagher  v.  Nichols, 
60  N.  Y.  438;  Man  ley  v.  Geagan,  105  Mass.  445.  In  Taylor  v.  Drake, 
4  Strobh.  (S.  C.)  Law,  431,  it  was  held,  as  in  Carville  ».  Cra  ie,  that  a 
verbal  promise  to  indorse  was  within  the  statute  ;  and  see  Williams  v. 
Caldwell,  4  S.  C.  100;  Wills  v.  Shinn,  42  N.  J.  Law,  138;  Chapline  v. 
Atkinson,  45  Ark.  67;  Smith  v.  Easton,  54  Md.  138.  And  see  Dee  v. 
Downs,  57  Iowa  589. 


220  STATUTE   OF  FBAUDS.  [CH.   X. 

and  the  rejection  of  such  evidence  at  the  trial,  the  judgment 
was  reversed.  The  remarks  of  the  court,  it  is  true,  indicate 
that,  if  the  promise  had  been  held  good,  it  would  have  been 
upon  the  ground  that  the  possession  of  funds  of  the  drawer 
by  the  defendant  was  in  the  nature  of  a  new  consideration 
moving  to  him ;  but  the  result  of  the  case  certainly  is  that  a 
verbal  accommodation  acceptance  is  not,  as  such,  saved  from 
the  operation  of  the  statute.1  In  Pillans  v.  Van  Mierop, 
decided  in  the  Queen's  Bench  in  1765,  the  same  view  is 
expressed  by  Lord  Mansfield.  The  defendants,  in  the 
expectation  of  having  funds  of  the  payee  in  their  hands, 
agreed  with  the  plaintiffs  to  honor  their  draft,  to  be  there- 
after drawn,  to  reimburse  them  for  money  lent  him;  after 
the  loan  and  before  the  draft  was  made,  the  proposed  payee 
failed,  and  the  defendants  notified  the  plaintiffs  that  their 
draft  would  not  be  accepted,  but  the  latter  nevertheless  drew, 
and  their  draft  was  dishonored.  The  agreement  being  by 
written  correspondence,  no  question  was  made  upon  the 
Statute  of  Frauds,  but  the  decision  was  simply  that  an  accept- 
ance of  a  draft  to  be  drawn  was  good.  Lord  Mansfield,  how- 
ever, said  he  had  no  idea  that  "promises  for  the  debt  of 
another  "  were  applicable  to  the  present  case ;  that  this  was 
a  mercantile  transaction ;  that  the  credit  was  given  upon  a 
supposition  "that  the  person  who  is  to  draw  upon  the  under- 
takers within  a  certain  time  has  goods  in  his  hands,  or  will 
have  them.  Here  [the  plaintiffs]  trusted  to  this  undertaking: 
and  there  is  no  fraud.  Therefore  it  is  quite  upon  another 
foundation  than  that  of  a  naked  promise  from  one  to  pay  the 
debt  of  another. " 2 

1  Pike  v.  Irwin,  1  Sandf.  14.     To  the  same  effect  are  Quin  v.  Hanford, 
1   Hill  (N.  Y.)  32;  Morse  v.  Mass.  Nat.  Bank,  1   Holmes  (C.  C.)  209 ; 
Wakefield  v.  Greenhood,  29  Cal.  597.     But  see  Jarvis  t».  Wilson,  8  Re- 
porter 264. 

2  Pillans  t*.  Van  Mierop,  3  Burr.  1666.     Upon  a  rehearing  of  the  case 
at  the  next  term,  Lord  Mansfield,  p.  1672,  used  the  following  language  : 
"  The  true  reason  why  the  acceptance  of  a  bill  of  exchange  shall  bind,  is 
not  on  account  of  the  acceptor's  having  or  being  supposed  to  have  effects 


CH.   X.]  GUARANTIES.  221 

§  175.  The  principle  of  Carville  v.  Crane  seems  to  apply  to 
a  promise  to  execute  a  bail  bond  for  the  appearance  of  a 
debtor,  in  those  cases  where  it  is  held  that  there  exists  a  duty 
upon  the  part  of  the  debtor  to  answer  for  his  default  to  the 
promisee ;  inasmuch  as  the  promise  to  execute  the  bail-bond 
would  then  bind  the  party  making  that  promise  to  put  himself 
in  a  position  where  he  would  be  answerable  for  the  default  of 
the  debtor  in  his  duty  of  appearing.1  In  an  early  case  in 
Connecticut,  where  the  defendant,  in  consideration  that  an 
officer  would  release  one  whom  he  had  arrested  for  debt  on 
final  process,  promised  to  see  the  prisoner  forthcoming  in 
the  morning,  or  pay  the  debt,  it  was  decided  on  error  to 
be  within  the  statute,  as  a  promise  to  answer  for  the  debt  or 
duty  of  another.  But  it  may  be  doubted  whether  there  was 
here  any  debt  or  duty  of  the  third  person  to  the  defendant's 
promisee,  and  if  not,  the  decision  was  not  correct.2 

§  176.  The  case  of  D'Wolf  v.   Rabaud,   decided  by  the 

in  hand ;  but  for  the  convenience  of  trade  and  commerce.  Fides  est  ser- 
vanda.  An  acceptance  for  the  honor  of  the  drawer  shall  bind  the  acceptor  : 
so  shall  a  verbal  acceptance."  In  the  absence  of  all  explanation  of,  or 
even  allusion  to,  his  language  at  the  first  hearing,  it  is  not  to  be  supposed 
that  his  Lordship  considered  himself  as  being  really  inconsistent.  The 
remarks  just  quoted  seem  to  be  justly  applicable  only  to  ordinary  business 
securities,  and  not  to  engagements  for  the  mere  accommodation  of  others, 
on  consideration  of  personal  kindness.  The  decision  of  the  Supreme 
Court  of  the  United  States  in  Townsley  v.  Sumrall,  2  Peters  170,  pro- 
ceeds upon  the  assumption  that  a  verbal  accommodation  acceptance  is 
within  the  statute,  but  holds  that  it  is  taken  out  of  the  statute  by  the 
circumstance  that  the  party  to  whom  the  promise  was  made  paid  money 
upon  the  strength  of  it  (though  not  to  the  promisor).  This  is  an  extreme 
application  of  the  modern  doctrine  that  a  new  and  original  consideration 
moving  between  the  parties  to  a  guaranty  (or,  as  in  this  case,  moving  only 
from  one  of  them  though  not  to  the  other)  takes  it  out  of  the  statute ;  and 
as,  in  all  cases  of  the  making  of  a  guaranty,  the  party  to  whom  it  is  given 
of  course  parts  with  some  value  thereupon,  it  must  be  said  with  the 
utmost  deference  that  it  is  difficult  to  see  what  is  left  of  the  Statute  of 
Frauds,  as  it  regards  this  class  of  contracts,  if  the  rule  is  to  be  so  applied. 

1  This  is  discussed  supra,  §§  159-162. 

s  Thomas  v.  Welles,  1  Root  57.  Corn-pare  Reader  v.  Kingham,  13 
C.  B.  N.  s.  344;  Gay  v.  State,  7  Kans.  246. 


222  STATUTE   OF  FRAUDS.  [CH.   X. 

United  States  Supreme  Court,  was  this.  The  defendant, 
James  D'Wolf  (plaintiff  in  error),  in  consideration  that 
Rabaud  &  Co.,  the  plaintiffs  below,  would  authorize  George 
D'Wolf  to  draw  upon  them  for  100,000  francs,  undertook 
and  promised  that  he  would  ship,  for  the  account  of  George 
D'Wolf,  on  board  such  vessel  as  he  (George  D'Wolf)  should 
direct,  500  boxes  of  sugar  consigned  to  the  plaintiffs  at 
Marseilles.  The  draft  was  made  and  honored,  but  the 
defendant  failed  to  ship  the  sugar,  and  this  action  was 
brought  to  recover  damages  therefor.  It  was  insisted  for 
the  defendant  that  the  memorandum  in  writing  signed  by 
him  did  not  show  any  consideration,  but  the  court  decided 
that  it  did;  so  it  will  be  perceived  that  the  determination 
whether  the  promise  was  within  the  statute  as  to  answer  for 
George  D'Wolf's  debt,  was  not  indispensable  to  the  case. 
The  court,  however,  in  their  opinion,  delivered  by  Mr. 
Justice  Story,  entertain  that  question,  and  conclude  that  the 
promise  would  have  been  binding  without  any  written  memo- 
randum, putting  the  case  thus :  "  If  A.  agree  to  advance  B.  a 
sum  of  money,  for  which  B.  is  to  be  answerable,  but  at  the 
same  time  it  is  expressed  upon  the  undertaking  that  C.  will 
do  some  act  for  the  security  of  A.,  and  enter  into  an  agree- 
ment with  A.  for  that  purpose,  it  would  scarcely  seem  a  case 
of  a  mere  collateral  undertaking,  but  rather,  if  one  might 
use  the  phrase,  a  trilateral  contract.  The  contract  of  B.  to 
repay  the  money  is  not  coincident  with  nor  the  same  con- 
tract with  C.  to  do  the  act.  Each  is  an  original  promise, 
though  the  one  may  be  deemed  subsidiary  or  secondary  to 
the  other. " l  It  appears  a  little  doubtful  from  this  language 
whether  the  promise  of  James  D'Wolf  to  ship  the  sugars  to 
Rabaud  <fe  Co.  was  or  was  not  regarded  by  the  court  as,  in 
its  effect  and  substance,  a  promise  to  be  answerable  for  their 
being  reimbursed  the  money  advanced  to  George  D'Wolf; 
although,  from  the  admission  in  the  opinion  that  it  was  con- 
current with  George's  liability,  it  is  to  be  inferred  that  it 
i  D'Wolf  v.  Rabaud,  1  Pet.  (U.  S.)  500. 


CH.   X.]  GUARANTIES.  223 

was  so  regarded.  And  it  would  seem  that  such  was  clearly 
its  character.  It  was  a  promise  by  the  defendant  to  put  into 
the  hands  of  the  plaintiffs  a  fund  out  of  which  the  debt  of 
George  D'Wolf  to  them  should  be  satisfied.1  If  the  defend- 
ant had  performed  his  promise,  and  George  had  afterwards 
failed  to  repay  the  money  advanced,  it  would  have  been 
repaid  out  of  that  fund,  as,  so  to  speak,  the  representative  of 
James's  engagement. 

§  176  a.  In  this  case,  it  is  difficult  to  see  why  the  promise 
to  furnish  sugar  to  the  plaintiffs  to  pay  the  third  party's  debt 
with,  in  case  of  his  default,  is  not  as  much  a  promise  "to 
answer  for  "  that  debt  as  a  promise  to  furnish  money  for  the 
same  purpose  would  have  been.  The  distinction  suggested 
by  the  court  between  the  guarantor's  contract  to  pay  the 
third  party's  debt,  and  his  contract  to  do  "some  act  for  the 
security  "  of  the  creditor  in  case  the  third  party  fails  to  pay, 
seems  quite  unsubstantial.  If  the  act  which  the  guarantor 
is  to  do  upon  the  third  party's  .default  is  an  act  intended  and 
adapted  to  make  the  creditor  whole  for  that  default,  whether 
it  be  to  pay  money,  or  to  provide  property  from  which  it  may 
be  paid,  or  to  render  service  of  any  kind  equivalent  in  value, 
the  promise  to  do  such  act  is  a  promise  "  to  answer  for  "  that 
default,  and  must  be  proved  by  writing  under  the  Statute  of 
Frauds.2 

§  177.  But  it  is  not  every  promise,  by  the  fulfilment  of 
which  a  creditor  is  placed  in  a  position  to  secure  his  debt, 
that  is  within  the  statute.  When  the  promise  is  to  indorse 
the  note  of  the  debtor,  or  accept  his  draft  for  his  accommo- 
dation, the  promisor  engages  to  place  himself  in  a  position 
where  he  may  be  compelled  to  pay  the  debt;  and  where  the 
promise  is  to  furnish  to  the  creditor  a  fund  out  of  which  the 
debt  is  to  be  secured,  the  fund  is,  according  to  the  expres- 
sion we  have  ventured  to  use,  the  representative  of  his  own 
engagement  to  pay  if  the  principal  debtor  does  not.  But  the 

i  Thornton  v.  Williams,  71  Ala.  555.   - 

*  See  Waterman  r.  "Rossiter,  45  111.  App.  155. 


224  STATUTE  OF  FRAUDS.  [CH.   X. 

result  of  the  decisions  appears  clearly  to  be,  that,  unless  the 
promisor  himself  or  his  property  is  ultimately  to  be  made 
liable  in  default  of  the  principal  debtor,  the  statute  does  not 
apply.  For  instance,  an  engagement  by  one  who  owes  a 
party  about  to  be  sued  by  another,  that  he  will  not  pay  over 
without  giving  notice  to  the  plaintiff,  in  order  that  the  latter 
may  attach  the  debt  by  the  trustee  process,  is  not  within  the 
statute,1  nor  a  promise,  by  one  who  has  receipted  for  attached 
property,  that  it  shall  be  returned  on  demand ; 2  for  the  whole 
effect  of  the  promise  in  either  case  is  to  place  at  the  plain- 
tiff's disposal  the  debtor's  own  property  and  not  that  of  the 
promisor.  Again,  where  the  defendant  promised  to  procure 
some  one  else  to  sign  a  guaranty  of  the  debt,  the  Court  of 
Common  Pleas  held  it  not  to  be  within  the  statute;3  and 
although  the  decision  was  put  upon  another  ground,  the  case 
appears  to  illustrate  the  principle  under  consideration;  for 
the  whole  effect  of  the  promise  was  that  the  creditor  should 
have,  not  the  promisor's,  but  a  third  party's  obligation  to 
rely  upon  as  collateral  to  that  of  the  original  debtor.  True, 
where  in  these  several  cases  the  promisor  failed  to  keep  his 
engagement,  he  was  held  to  pay  the  damages  sustained 
thereby,  but  not  necessarily  to  the  amount  of  the  original 
debt;  and  if  he  had  fulfilled  his  promise,  he  would  not  then 
have  paid,  or  made  himself  liable  to  pay,  the  debt;  which 

1  Towne  v.  Grover,  9  Pick.  (Mass.)  306.  And  see  Scott  v.  Thomas, 
1  Scam.  (111.)  58. 

-  Marion  v.  Faxon,  20  Conn.  486.  A  distinction  has  been  intimated 
between  promising  that  property  levied  upon  and  released  to  the  debtor 
should  be  returned,  and  promising  that  the  debtor  should  return  it,  but  this 
seems  to  be  a  mere  criticism  upon  words.  Tindal  v.  Touchberry,  3 
Strobh.  (S.  C.)  Law,  177. 

8  Bushell  v.  Beavan,  1  Bing.  N.  R.  103.  The  ground  taken  by  the 
court  was  that  no  one  was  bound  collaterally  with  the  defendant  to  pro- 
cure the  signature  to  the  guaranty.  This  seems  to  be  but  a  narrow  view 
of  the  case,  for  if  the  effect  of  the  defendant's  promise  was  to  engage 
that  the  original  debt  should  be  paid  (which  was  the  further  and  essential 
question),  then  it  was  collateral  to  the  debtor's  own  liability.  This  case 
was  commented  upon  unfavorably  in  Carville  v.  Crane,  5  Hill  (N".  Y.)  483. 


CH.   X.]  GUARANTIES.  225 

latter   appears  to  be  a  conclusive   test  as  to  whether  his 
promise  was  within   the  statute. 

§  178.  A  mere  engagement  to  let  a  party  have  goods  by 
way  of  purchase,  which  goods  are  to  be  applied  in  payment 
of  a  debt  of  the  purchaser,  it  can  scarcely  be  necessary  to 
say,  is  not  affected  by  the  Statute  of  Frauds.1  But  where, 
upon  an  account  stated  between  two  parties,  it  appeared  that 
a  large  part  of  an  amount  which  one  acknowledged  by  letter 
to  have  received  from  the  other  was  a  sum  due  to  the  latter 
from  a  third  party,  which  the  former  allowed  to  be  trans- 
ferred to  the  debit  side  of  his  account,  it  was  held  that  he 
was  not  liable  for  that  sum,  the  arrangement  amounting  to  a 
promise  without  consideration  to  pay  such  third  party's  debt.2 
A  conditional  promise  also,  as,  to  pay  a  certain  sum  for  a 
third  person  if  so  much  should  be  found  to  be  owing  by  him, 
is  held  to  be  within  the  statute.8 

§  179.  It  has  been  said  that  a  promise  to  pay  only  a  portion 
of  the  debt,  in  satisfaction  of  the  whole,  if  the  debtor  failed 
to  meet  his  obligation,  was  not  within  the  statute,  because 
it  was  not  a  promise  to  answer  for  the  debt  due.4  The  case 
in  which  the  remark  was  made,  however,  was  decided  on 
wholly  independent  grounds,  and  this  distinction  (which  is, 
if  for  no  other  reason,  to  be  deprecated  as  founded  merely 
upon  the  letter  of  the  statute)  appears  to  have  been  entirely 
disregarded  in  a  late  decision  of  the  Lord  Chancellor.5 

§  180.  It  hardly  needs  to  be  said  that  an  administrator's 
verbal  submission  to  arbitration  of  a  claim  against  his  intes- 
tate's estate  will  be  binding  upon  him,  notwithstanding  the 


1  Price  v.  Combs,  7  Halst.  (N.  J.)  188.  Mather  v.  Perry,  2  Denio 
(N.  Y.)  162.  See  Moorehouae  v.  Crangle,  36  Ohio  St.  130. 

9  French  v.  French,  2  Man.  &  G.  644. 

«  Barry  v.  Law,  1  Cratich  (C.  C.)  77. 

4  By  Mansfield,  C.  J.,  in  Anstey  v.  Marden,  1  Bos.  &  P.  N.  R.  124. 
See  post,  §  210,  where  that  case  is  fully  examined.  A  similar  suggestion 
is  made  in  Jolley  r.  Walker,  2tf  Ala.  690. 

6  Emmet  v.  Dewhurst,  3  McN.  &  G.  587. 

15 


226  STATUTE   OF   FRAUDS.  [CH.    X. 

Statute  of  Frauds,  such  a  submission  having  no  effect  to  hold 
him  liable  to  pay  the  award  out  of  his  own  estate.1 

§  181.  Since  the  case  of  Pasley  v.  Freeman,2  decided  in  the 
Queen's  Bench  in  1789,  it  has  been  considered,  both  in  Eng- 
land and  in  this  country,  that  the  provisions  of  the  statute  in 
regard  to  verbal  promises  to  answer  for  the  debts,  defaults, 
or  miscarriages  of  others  do  not  apply  to  false  and  deceitful 
representations  as  to  the  credit  or  solvency  of  third  persons. 
The  doctrine  commends  itself  as  a  firm  stand  taken  by  the 
courts  against  actual  frauds  and  cheats,  but  at  the  same 
time  comes  dangerously  near  to  an  invasion  of  the  statute 
which  was  wisely  designed  to  prevent  them ;  and  accordingly 
it  has  been  strongly  condemned  by  Lord  Eldon.3  Impelled 

1  Ailing  v.  Munson,  2  Conn.  691 ;  Holderbaugh  v.  Turpin,  75  Ind.  84. 
See  the  whole  subject  of  submissions  by  administrators   and  executors 
•well  discussed  in  Williams  on  Executors,  1519-1522. 

2  Pasley  v.  Freeman,  3  T.  R.  51,  followed  in  England  in  Eyre  v.  Duns- 
ford,  1  East  318;  Haycraft  v.  Creasy,  2  East  92;  Tapp  v.  Lee,  3  Bos.  & 
P.  367;  Foster  v.  Charles,  6  Bing.  390;  and  in  this  country  in  Wise  v. 
Wilcox,  1  Day  (Conn.)  22;  Hart  v.  Tallmadge,  2  Day  (Conn.)  381 ;  Rus- 
sell v.  Clark,  7  Cranch  (C.  C.)  69;  Patten  ».  Gurney,  17  Mass.  182  ;  Ben- 
ton  v.  Pratt,  2  Wend.  (N.  Y.)  385;  Allen  v.  Addington,  7  Wend.  (N.  Y.) 
9;  Upton  v.  Vail,  6  Johns.  (N.  Y.)  181;  Ewins  v.  Calhoun,  7  Vt.  79; 
Weeks  v.  Burton,  7  Vt  67;  Warren  ».  Barker,  2  Duv.  (Ky.)  155. 

8  In  Evans  r.  Bicknell.  6  Ves.  186,  the  remarks  of  the  learned  judge 
are  so  judicious  that  it  may  be  well  to  insert  them.  He  says  of  Pasley  v. 
Freeman  :  "  The  doctrine  laid  down  in  that  case  is  in  practice  and  expe- 
rience most  dangerous.  I  state  that  upon  my  own  experience  ;  and  if  the 
action  is  to  be  maintained  in  opposition  to  the  positive  denial  of  the  de- 
fendant against  the  stout  assertion  of  a  single  witness,  where  the  least 
deviation  in  the  acrount  of  the  conversation  varies  the  whole,  it  will 
become  necessary,  in  order  to  protect  men  from  the  consequences,  that 
the  Statute  of  Frauds  should  be  applied  to  that  case.  Suppose  a  man 
asked  whether  a  third  person  may  be  trusted  answers,  '  You  may  trust 
him;  and  if  he  does  not  pay  you,  I  will.'  Upon  that  the  plaintiff  cannot 
recover;  because  it  is  a  verbal  undertaking  for  the  debt  of  another.  But 
if  he  does  not  imdertake,  but  simply  answers,  '  You  may  trust  him:  he  is 
a  very  honest  man  and  worthy  of  trust,'  etc.,  then  an  action  will  lie. 
Whether  it  is  fit  the  law  shonld  remain  with  such  distinctions,  it  is  not 
for  me  to  determine.  Upon  the  case  of  Pasley  v.  Freeman,  I  have  always 
said,  when  I  was  Chief  Justice,  that  I  so  far  doubted  the  principles  of  it 


CH.   X.]  GUARANTIES.  227 

by  that  consideration,  Parliament  enacted  what  may  be  called 
a  supplement  to  the  Statute  of  Frauds,  to  the  effect  that  "  no 
action  shall  be  brought  whereby  to  charge  any  person  upon 
or  by  reason  of  any  representation  or  assurance  made  or  given 
concerning  or  relating  to  the  character,  conduct,  credit, 
ability,  trade,  or  dealings  of  any  other  person,1  to  the  intent 
or  purpose  that  such  other  person  may  obtain  credit,  money, 
or  goods  upon  [meaning  'money  or  goods  upon  credit'],2 
unless  such  representation  or  assurance  be  made  in  writing, 
signed  by  the  party  to  be  charged  therewith. "  3  The  plain 
meaning  of  this  statute  seems  to  be  that  it  requires  writing 
to  charge  a  defendant  upon  any  representation  made  in  regard 
to  the  credit,  etc.  of  a  third  party,  whether  the  representa- 
tion was  made  in  good  faith,  or  was  known  to  be  false  and 
was  made  in  order  to  deceive  and  defraud  the  plaintiff; 

as  to  make  it  not  unfit  to  offer,  as  I  always  did,  to  the  counsel,  that  a 
special  verdict  should  be  taken:  but  that  offer  was  so  uniformly  rejected, 
that  I  suppose  I  was  in  some  error  on  this  subject.  I  could  therefore 
only  point  out  to  the  jury  the  danger  of  finding  verdicts  upon  such  prin- 
ciples; and  I  succeeded  in  impressing  them  with  a  sense  of  that  danger 
so  far,  that  the  plaintiffs  in  such  actions  very  seldom  obtained  verdicts. 
It  appears  to  me  a  very  extraordinary  state  of  the  law,  that  if  the  plain- 
tiff in  the  case  of  Pasley  v.  Freeman  had  come  into  equity,  insisting  that 
the  defendant  should  make  good  the  consequence  of  his  representation, 
and  the  defendant  positively  denied  that  he  had  made  that  representation, 
and  only  one  witness  was  produced  to  prove  it,  the  court  of  equity  would 
give  the  defendant  so  much  protection  that  they  would  refuse  the  relief ; 
and  yet  upon  the  very  same  circumstances  the  law  would  enable  the 
plaintiff  to  recover.  Whether  that  is  following  equity,  or  not  quite  out- 
stripping equity,  is  not  a  question  for  discussion  now ;  but  it  leads  to  the 
absolute  necessity  of  affording  protection  by  a  statute,  requiring  that 
these  undertakings  shall  be  in  writing."  This  was  done  twenty-seven 
years  after  by  Lord  Tenterden's  Act,  referred  to  in  the  text.  See  also 
Carr,  ex  parte,  3  Ves.  &  B.  108. 

1  The  word  "person"  was  held  to  include  a  corporation  in  Bush  v. 
Sprague,  51  Mich.  41. 

2  Per  Gurney,  B.,  in  Lyde  v.  Barnard,  Tyrw.  &  G.  250. 

8  9  Geo.  IV.  cap.  14,  §  6,  commonly  called  Lord  Tenterden's  Act.  In 
the  following  American  States  similar  statutes  have  been  enacted: 
Maine,  Vermont,  Massachusetts,  Virginia,  Alabama,  Kentucky,  Indiana, 
Missouri,  Michigan,  and  Oregon. 


228  STATUTE   OF  FRAUDS.  [CH.   X. 

because  the  presence  of  this  element  of  intention  to  deceive 
and  defraud  was  the  very  point  on  which  Pasley  v.  Freeman 
held  that  Stat.  29  Car.  II.,  did  not  apply;  and  the  purpose 
of  the  Tenterden  Act  was  to  require  writing  in  a  case  for 
which  29  Car.  II.  had  failed  to  do  so.1  Nevertheless  it  has 
been  held  in  several  States  that  the  Tenterden  Act,  as  re- 
enacted  there,  did  not  require  writing  in  cases  of  misrepre- 
sentation in  regard  to  credit,  etc.,  if  fraudulently  made.2 

§  182.  Soon  after  the  passage  of  this  act,  it  was  made  a 
question,  in  the  Court  of  Exchequer,  whether  the  represen- 
tations which  were  required  to  be  in  writing  were  such  only 
as  related  to  the  third  person's  general  pecuniary  ability, 
standing,  or  condition,  or  whether  the  act  embraced  specific 
representations  as  to  the  state  of  a  certain  portion  of  his 
property.  The  plaintiff  was  about  to  lend  money  to  T.  on 
the  purchase  of  an  annuity,  and  it  was  intended  to  secure 
the  loan  by  an  assignment  of  his  life  interest  in  a  particular 
trust  fund.  The  trustee  of  the  fund  being  applied  to,  to  in- 
form the  plaintiff  as  to  the  existing  state  of  T.  's  life  interest 
in  it,  and  what  encumbrances  then  affected  it,  replied  ver- 
bally that,  of  six  annuities  which  had  been  secured  by  T.  on 
this  fund,  three  had  been  paid  off  and  discharged  in  the 
enrolment  office,  and  that  the  other  three  still  existed,  but 
that,  subject  to  the  above,  he,  the  trustee,  had  no  notice  of 
any  other  charge  on  it.  At  the  time  this  representation  was 
made,  T.  's  interest  in  the  trust  funds  had  been  transferred  to 
the  party  who  had  discharged  three  of  the  six  annuities,  sub- 
ject to  the  payment  of  the  other  three.  The  plaintiff  advanced 
the  money  to  T.,  who  did  not  repay  it.  An  action  having 
been  brought  against  the  trustee  for  false  representation,  the 
plaintiff  was  nonsuited,  and  the  present  question  was  upon 
setting  aside  the  nonsuit.  It  was  conceded  that,  if  the 


1  Nevada  Bank  v.  Portland  National  Bank,  59  Fed.  Rep.  341. 

2  Warren  v.  Barker,  2  Duv.   (Ky.)  156;    Dent  v.  McGrath,  3  Bush 
(Ky.)  176;  Clark  v.  Lumber  Co  ,  86  Ala.  220. 


CH.   X.]  GUARANTIES.  229 

defendant's  representation  was  within  the  statute  at  all,  it 
was  as  concerning  the  ability  of  the  third  person,  and  upon 
the  meaning  of  that  expression  as  there  used  the  case  is 
most  elaborate  and  instructive.  The  court  were,  however, 
divided:  Chief  Baron  Lord  Abinger  and  Baron  Gurney 
being  of  opinion  that  the  representation,  as  one  affecting 
the  third  person's  ability  to  give  the  desired  security,  was 
covered  by  the  statute,  but  Barons  Alderson  and  Parke  con- 
sidering that  the  statute  intended  only  a  man's  general 
pecuniary  ability,  or  standing,  or  condition,  and  not,  as  they 
regarded  this  case,  merely  the  state  of  a  certain  portion  of 
his  property.  It  was  concluded  that,  although,  on  account  of 
the  equal  division,  the  defendant  was  entitled  to  retain  his 
nonsuit,  yet  the  court  would  permit  the  rule  to  be  made 
absolute,  on  payment  of  costs  to  the  defendant,  in  order  that 
the  point  might  be  raised  upon  the  record,  and  carried  to  a 
court  of  error.1 

§  183.  The  application  of  the  statute  is  to  be  strictly  con- 
fined to  representations  in  regard  to  a  third  party,  and  made 
for  the  purpose  of  obtaining  credit  for  him.2  It  has  been 

1  Lyde  v.  Barnard,  Tyrw.  &  G.  250.     Where  the  plaintiff  was  induced 
to  lend  money  to  a  third  party  by  the  defendant's  representation  that  he 
had  in  his  possession  the  title  deeds  to  an  estate  which  he  said  such  third 
party  had  lately  bought,   and  nothing  could  be  done  without  his  (the 
defendant's)  knowledge,  and  that  the  plaintiff"  would  be  perfectly  safe  in 
making  the  desired  loan ;  it  was  held  to  amount  to  a  representation  that 
the  third  party's  credit  was  good,  and  to  be  not  binding  without  writing. 
Swann  v.  Phillips,  8  Ad.  &  E.  457.     In  Massachusetts,  it  has  been  held 
that  false  assertions  fraudulently  made  by  the  defendant,  as  to  the  cost 
and  other  particulars  in  regard  to  an  estate  belonging  to  a  third  person, 
which  the  plaintiff  was  thereby  induced  to  buy,  were  actionable  in  trespass 
on  the  case,  without  proving  that  they  were  made  in  writing.     Medbury 
v.  Watson,  6  Met.  246.     See  also  French  ».  Fitch,  67  Mich.  492. 

2  First  National  Bank  of  Plattsburg  v.   Sowles,  46  Fed.   Rep.  731; 
St.  John  v.  Hendrickson,  81  Ind.  350.     See  Ball  v.  Farley,  81  Ala  288 ; 
Medbury  v.  Watson,  6  Mete.  (Mass.)  246;  Kimball  v.  Comstock,  14  Gray 
(Mass.)  508;  Norton  v.  Huxley,  13  Gray  (Mass.)  285;  Bush  v.  Sprague, 
51  Mich.  41.     It  does  not  apply  to  representations  made  by  the  defend- 
ant in  regard  to  his  own  credit,  property,  etc.     French  v.  Fitch,  67  Mich. 
492. 


230  STATUTE   OF  FKAUDS.  [CH.   X. 

held,  that  it  did  not  bar  an  action  of  tort  upon  oral  repre- 
sentations falsely  and  fraudulently  made  by  a  defendant  to 
the  plaintiff,  on  his  assuming  the  prosecution  of  a  contract  of 
work  commenced  for  the  defendant  by  another  person  (who 
had  become  unable  to  carry  it  on),  that  there  would  be  no  risk 
in  his  undertaking  the  work,  and  that  defendant  had  sufficient 
funds  in  his  hands  due  to  the  former  contractor.1  In  a  case 
in  New  York,  the  declaration,  after  setting  forth  a  proposi- 
tion for  the  sale  of  a  quantity  of  cotton  by  the  plaintiffs  to 
certain  third  parties,  and  their  inability  to  pay  for  it,  and  the 
plaintiff's  unwillingness  to  sell  upon  their  sole  credit,  stated 
that,  to  induce  the  plaintiffs  to  sell  and  deliver  the  cotton, 
the  defendant  falsely  and  deceitfully  represented  and  held 
out  to  them  that  he,  the  defendant,  was  willing  to  indorse  a 
proposed  note  of  the  third  parties  for  the  price  of  the  cotton. 
That  they  did  sell  and  deliver  it  in  confidence  of  such  false 
representation,  when  in  truth  the  defendant  was  then  not 
willing,  and  did  not  mean  or  intend,  to  indorse  the  note,  or 
make  himself  responsible ;  nor  did  he  then  indorse,  nor  had 
he  at  any  time  since  indorsed  the  note ;  and  they  alleged  loss 
of  the  cotton  and  the  price  in  consequence.  The  court  held 
that  the  Statute  of  Frauds  was  a  bar  to  the  action,  for  that, 
if  stripped  of  the  general  allegations  of  fraud  and  deceit,  the 
case  was  nothing  more  than  that  the  defendant  encouraged 
the  plaintiffs  to  sell  to  the  third  parties,  and  as  surety  prom- 
ised to  indorse  their  notes.2  In  a  case  in  Maryland,  the 
defendant  carried  a  third  person  to  the  plaintiff,  and  passed 
him  off  as  a  particular  friend  of  his,  living  near,  whereby 
the  plaintiff  was  induced  to  sell  him  slaves,  which  the  third 

1  Norton  v.  Huxley,  13  Gray  (Mass.)  285.     And  see  Kimball  r.  Corn- 
stock,  14  Gray  (Mass.)  508;  Clark  o.  Dunham  Lumber  Co.,  86  Ala.  220; 
Daniel  v.  Robinson,  66  Mich.  296. 

2  Gallager  v.  Brunei,  6  Cowen  346.     And  see  Shaw  v.  Stine,  8  Bosw. 
(N.  Y.)  157;    Smith  v.  Harris,  2  Stark.  47.      In    Massachusetts  it  was 
held  that  the  warranty  of  the  genuineness  of  the  signatures  in  a  note,  by 
the  person  offering  it  for  discount  at  a  bank,  need  not  be  in  writing. 
Cabot  Bank  v.  Morton,  4  Gray,  156. 


CH.    X.]  GUARANTIES.  231 

party,  who  turned  out  to  be  a  slave-dealer  from  South  Caro- 
lina, afterward  carried  off  to  that  State.  It  was  objected 
that  the  representation  or  stipulation  of  the  defendant  was 
within  the  statute ;  but  held  to  be  clearly  not  so,  but  a  palpa- 
ble fraud  and  cheat,  for  which  the  plaintiff  was  entitled  to 
damages.1  Whether  fraudulent  verbal  misrepresentations  as 
to  a  third  person's  residence,  or  family  connection,  or  other 
circumstance  not  embraced  in  the  enumeration  in  the  recent 
statutes,  which  are  the  inducements  to  giving  credit  to 
such  third  person,  should  give  a  cause  of  action  in  view  of 
those  statutes,  the  courts  may  hereafter  have  difficulty  in 
determining. 

§  184.  It  does  not  save  a  case  from  the  operation  of  this 
statute,  that  the  procuring  of  credit,  etc.  for  a  third  party 
was  not  the  only,  or  the  principal  purpose  with  which  the 
representation  was  made.  For  instance,  a  fraudulent  repre- 
sentation by  the  defendant,  that  a  third  party  was  of  good 
credit,  although  made  for  the  purpose  of  enabling  the  third 
party  to  pay  his  debt  to  the  defendant,  has  been  held  to  be 
within  the  statute,  and  to  require  a  writing;  the  plaintiff 
having  been  by  such  representation  induced  to  sell  such 
third  party  merchandise  on  credit.2  And  where  an  insurance 
agent  made  representations  as  to  the  credit  of  an  insurance 
company,  in  which  he  thereby  induced  the  plaintiff  to  effect 
an  insurance,  although  it  was  alleged,  and  evidence  offered 
to  show,  that  the  defendant's  motive  in  making  the  repre- 
sentations was  to  secure  his  commissions  as  agent;  yet  as 
that  profit  would  accrue  only  in  consequence  of  the  credit 
given  to  the  company,  the  case  was  held  to  be  within  the 
statute.3 

1  Adams  v.  Anderson,  4  Harr.  &  J.  558.  And  see  Hodgin  et  al.  v. 
Bryant,  114  Ind.  401.  See  also  Lahay  t».  City  National  Bank,  15  Col. 
339. 

*  Kimball  v.  Comstock,  14  Gray  (Mass.)  508.  And  see  Mann  v.  Blan- 
chard,  2  Allen  (Mass.)  386;  Cook  v.  Churchman,  104  Ind.  141;  Hodgin 
v.  Bryant,  114  Ind.  401;  Bates  v.  Youngerman,  142  Mass.  120. 

8  Wells  v.  Prince,   15  Gray  (Mass.)  562;  McKinnpy  r.    Whiting,  8 


232  STATUTE   OF   FRAUDS.  [CH.    X. 

§  184  a.  An  action  will  lie  for  a  false  representation  in 
writing  as  to  the  character  and  circumstances  of  a  third  per- 
son, whereby  the  plaintiff  was  induced  to  give  him  credit, 
although  he  might  have  been  in  part  influenced  by  subse- 
quent oral  representations  of  the  defendant ;  if  the  jury  are 
satisfied  that  the  plaintiff  was  substantially  induced,  by  the 
written  representation,  to  give  the  credit.1 

§  184  6.  Although  the  action  be  not  brought  in  terms  upon 
the  defendant's  representation  as  to  the  third  party's  credit, 
etc.,  yet  if  proof  of  such  representation  be  essential  to  the 
action,  the  statute  applies.2  A  case  in  the  Queen's  Bench  was 
assumpsit  for  money  had  and  received ;  the  plaintiff  had  been 
induced  by  the  defendant's  misrepresentations  as  to  the  credit 
of  a  third  party  to  supply  her  with  goods,  from  the  sales  of 
which  she  had  paid  a  debt  of  her  own  to  the  defendant ;  and 
the  plaintiff  sought  to  recover  under  this  form  of  action,  the 
sums  so  received  by  the  defendant.  It  was  held  that  he 
could  not  recover.  Lord  Denman,  C.  J.  :  "  The  plaintiff  says, 
the  action  is  not  upon  the  representation,  but  for  money  had 
and  received ;  that  the  representation  is  a  mere  medium  of 
proof,  the  case  being  that  a  fraud  was  committed,  in  the  course 
of  which  this  representation  was  made,  and  that  the  produce 
of  the  goods  obtained  by  such  fraud  belongs  to  the  plaintiff. 
But  the  only  fact  on  which  the  case  of  fraud  rested  at  the 
time  of  offering  the  evidence  was,  that  the  defendant  had 
authorized  H.  to  give  Mrs.  B.  a  fair  character."  3 

Allen  (Mass.)  207.  But  where  an  action  is  brought  on  account  of  a 
false  representation  as  to  the  existence  in  fact  of  a  corporation  or  copart- 
nership, it  has  been  held  that  the  statute  did  not  apply.  Hess  v.  Culver, 
77  Mich.  598  ;  Clark  v.  Hurd,  79  Mich.  130. 

1  Tatton  v.  Wade,  18  C.  B.  370;  Weil  v.  Schwartz,  21  Mo.  App.  372. 
See  post,  §  185. 

2  Hunter  v.  Randall,  62  Me.  425. 

8  Haslock  v.  Fergusson,  7  Ad.  &  E.  94.  But  recovery  has  been  al- 
lowed where  the  plaintiff  was  induced  to  part  with  money  by  actual  fraud 
of  the  defendant  although  the  money  was  nominally  paid  to  a  third  party, 
the  defendant  having  in  fact  received  it.  Bush  v.  Sprague,  51  Mich.  41; 
Daniel  v.  Robinson,  66  Mich.  296. 


CH.    X.]  GUARANTIES.  233 

§  185.  A  question  of  much  importance  and  nicety  arises, 
in  the  absence  of  such  a  statute  as  that  now  under  considera- 
tion, when  a  false  and  fraudulent  representation  as  to  the 
credit  of  a  third  person  is  coupled  with  a  promise  to  answer 
for  his  paying  the  debt  about  to  be  incurred.  Such  was  the 
case  of  Hamar  v.  Alexander,  where  the  defendant  represented 
to  the  plaintiff  "that  one  C.  L.  was  a  good  man,  and  might 
be  trusted  to  any  amount,  and  that  he  the  said  defendant 
durst  be  bound  to  pay  for  him,  the  said  C.  L."  It  was 
objected  by  the  defendant  that  the  action  could  not  be  main- 
tained for  the  deceit,  because  the  injury  might  have  arisen 
not  from  the  false  representation,  but  from  the  violation  of 
the  promise  to  pay,  which  was  not  actionable  on  account  of 
the  Statute  of  Frauds.  After  a  verdict  for  the  plaintiff 
below,  and  upon  motion  in  the  Common  Pleas  to  set  it  aside 
and  enter  a  nonsuit  upon  that  ground,  the  court  took  time  to 
deliberate,  and  finally  determined  that  the  verdict  should 
stand.  Sir  James  Mansfield  delivered  the  opinion,  in  which, 
after  admitting  the  difficulty  suggested  for  the  defence,  he 
says :  "  I  am  far  from  wishing  to  sustain  an  action  simply 
upon  misrepresentation,  but  there  never  was  a  time  in  the 
English  law,  when  an  action  might  not  have  been  maintained 
against  the  defendant  for  this  gross  fraud.  .  .  .  There  is  no 
proof  that  the  plaintiff  ever  considered  the  defendant  as  his 
debtor,  or  ever  called  upon  him  for  the  money,  or  relied  upon 
his  promise  in  the  least  degree.  In  the  next  place,  we  must 
suppose  every  man  to  know  the  law ;  and  if  the  plaintiff  was 
acquainted  with  the  law  he  must  have  known  that  the  defend- 
ant's promise  was  worth  nothing,  and  could  have  given  no 
credit  to  him  upon  it.  He  cannot  have  considered  it  in  any 
other  light  than  as  a  mode  of  expression,  by  which  the 
defendant  intended  more  strongly  to  express  his  opinion  of 
L. 's  circumstances."1  It  does  not  appear  that  any  case 
directly  involving  the  same  point,  namely,  the  combination 
of  a  deceit  and  a  guaranty,  has  been  since  decided,  though  it 
1  Hamar  v.  Alexander,  2  Bos.  &  P.  N.  R.  244. 


234  STATUTE   OF  FKAUDS.  [CH.   X. 

has  been  so  alluded  to  as  to  indicate  that  it  was  settled  and 
in  conformity  with  the  decision  in  Hamar  v.  Alexander.1  It 
seems,  then,  that  the  question,  in  all  such  cases  of  deceit  as 
to  the  third  party's  credit,  accompanied  by  a  promise  to 
answer  for  him,  is  whether  the  party  imposed  upon  by  the 
false  representation  did  or  did  not  rely  in  addition  upon  the 
promise ;  for  if  not,  but  the  sole  credit  was  given  to  the  third 
party  by  reason  of  the  false  representation  as  to  his  responsi- 
bility, then  an  action  will  lie  for  the  deceit ;  and  that  this  is 
a  question  of  fact  to  be  determined  upon  all  the  circumstances 
of  the  case. 

§  186.  The  special  promise  intended  by  the  statute  is,  in 
the  next  place,  such  as  raises  an  obligation  to  pay  out  of  the 
promisor's  own  estate.  That  clause  which  relates  to  the 
engagements  of  executors  and  administrators  to  answer  dam- 
ages, or,  in  other  words,  to  pay  debts  of  the  decedent,  is 
express  to  the  same  effect ;  but  for  an  obvious  reason.  Their 

1  Thompson  v.  Bond,  1  Camp.  4,  by  Lord  Ellenborough.  In  a  subse- 
quent case,  Smith  i;.  Harris,  2  Stark.  48,  Lord  Ellenborough  held  the 
words,  "  that  plaintiff  might  lend  one  H.  £20  or  £30,  and  that  he  would 
be  perfectly  safe,  and  that  he  (defendant)  would  see  the  plaintiff  paid," 
to  amount  to  nothing  more  than  a  guaranty  within  the  Statute  of  Frauds. 
I  do  not  understand  his  Lordship,  as  it  seems  Mr.  Fell  does  (Law  of 
Mercantile  Guaranties,  235,  note),  to  differ  with  the  previous  decisions 
upon  this  point,  but  that  he  considers  the  words  used  as  having  no  mean- 
ing farther  than  a  promise  to  answer  for  H.  If  the  words  used  are  put 
in  the  fi rst  person ,  thus:  "  You  will  be  perfectly  safe  ;  I  will  see  you  paid," 
it  is  still  more  manifest  that  there  is  no  distinct  affirmation  as  to  the  fact 
of  responsibility.  The  rule  in  Hamar  r.  Alexander  is  also  incidentally 
stated  (though  that  case  is  not  referred  to)  in  Gallager  v.  Brunei,  6 
Cowen  (X.  Y.)  346,  per  Woodworth,  J.  And  see  also  Haslock  v.  Fergus- 
son,  7  Ad.  &  E.  86.  Since  the  publication  of  the  second  edition  of  this 
work,  it  has  been  held  that  a  verbal  guaranty  that  certain  notes  sold  by 
defendants  to  plaintiffs  were  good  and  collectible,  and  the  makers  respon- 
sible, —  that  the  maker  of  a  certain  mortgage  sold  at  the  same  time  was 
responsible  and  able  to  pay,  —  that  the  land  mortgaged  was  ample 
security  and  the  title  perfect  and  unencumbered.  —  was  valid  without 
writing;  the  statute  in  regard  to  parol  representations  of  credit,  etc., 
being  confined  to  cases  where  the  representations  formed  no  part  of  a 
contract.  Huntington  v.  Wellington,  12  Mich.  10. 


CH.    X.]  GUARANTIES.  235 

promises  to  pay  out  of  the  decedent's  estate,  though  special, 
it  would  clearly  not  be  within  the  policy  of  the  statute  to 
require  to  be  put  in  writing.  We  cannot,  therefore,  draw 
from  that  difference  in  the  phraseology  of  the  two  clauses  any 
argument  against  the  rule  as  just  stated,  and  as  to  be  pres- 
ently illustrated.  Meanwhile  it  may  be  here  remarked  that 
whether  a  bare  promise  by  an  executor  or  administrator  to 
pay  a  debt  of  his  decedent  will  be  regarded  as  a  promise  to 
answer  from  his  own  estate,  or  not,  seems  to  depend  upon  his 
having  or  not  having  assets  from  the  estate  at  the  time  of 
promising.  If  he  have  not  assets,  his  promise  must  be  ful- 
filled, if  at  all,  out  of  his  own  estate,  and  the  statute  would 
require  it  to  be  in  writing.  If  he  have  assets,  he  would  have 
a  right  to  charge  them  with  the  damages  recovered  against 
him  upon  such  promise ;  and  so,  though  the  judgment  might 
be  against  him  personally,  the  damages  would  ultimately 
be  answered  out  of  the  estate  of  the  decedent,  not  out  of  his 
own,  and  the  spirit  of  the  statute  would  not  require  the 
promise  to  be  in  writing.  Accordingly,  it  is  held  that  an 
executor's  or  administrator's  plea  in  bar  to  an  action  against 
him  on  such  a  promise  should  allege  that  he  has  no  assets,  as 
otherwise  it  does  not  appear  that  a  memorandum  in  writing 
is  necessary.1  And  in  this  view,  it  may  be  considered  im- 
material whether  the  promise  be  in  terms  to  pay  out  of  his 

1  Pratt  v.  Humphrey,  22  Conn.  317  The  same  view  is  contained  in 
the  case  of  Stebbins  v.  Smith,  4  Pick.  (Mass.)  97,  in  which  it  is  farther 
held  that  the  executor's  giving  bond  to  the  Judge  of  Probate  is  an  ad- 
mission of  assets  in  his  hands.  The  decision  in  Stebbins  v.  Smith  seems 
to  have  been  overlooked  in  the  subsequent  case  of  Silsbee  r.  Ingalls,  10 
Pick.  526,  where,  however,  the  court  did  not  find  it  necessary  to  hold  the 
promise  (notwithstanding  the  admission  of  assets)  to  be  within  the  stat- 
ute, for  if  it  had  not  been,  the  plaintiff  could  have  had  no  relief  in  equity, 
the  statute  not  depriving  him  of  his  remedy  at  law.  Again.  Hay  v.  Green, 
12  Cush.  282,  without  noticing  Stebbins  r.  Smith,  asserts  broadly  that  an 
oral  promise  by  an  administrator  to  pay  a  distributive  share  in  the  estate 
to  an  assignee  of  the  heir-at-law  is  not  good.  And  Smith  r.  Carroll,  112 
Pa.  St.  390,  to  the  same  effect  cites  Hay  v.  Green,  but  not  Stebbins  v. 
Smith. 


236  STATUTE   OF  FRAUDS.  [OH.    X. 

own  estate,  but  that  the  true  question  is,  whether  by  his 
promise  he  has  assumed  an  obligation  which  is  to  be  a  charge 
upon  his  personal  and  private  resources.  For  undoubtedly 
the  statute,  in  this  whole  matter  of  collateral  engagements, 
was  designed  to  prevent  the  fraudulent  assertion  of  claims 
against  third  parties  who  were,  except  for  their  alleged 
promises,  not  personally  liable  at  all. 

§  187.  It  is  obvious  that  an  engagement  in  terms  to  apply 
the  debtor's  own  funds,  received  or  to  be  received  by  the 
defendant,  to  the  payment  of  the  demand  against  him,  creates 
a  duty  as  agent  rather  than  as  surety ;  the  defendant's  prom- 
ise is  not  to  pay  the  debt,  but  merely  to  deliver  certain  prop- 
erty to  the  nominee  of  the  original  debtor ;  and  the  right  of 
action  of  such  nominee  against  the  defendant  for  a  breach  of 
his  promise  is  not  at  all  affected  by  the  Statute  of  Frauds.1 
And  though  the  form  of  the  defendant's  engagement  be  dif- 
ferent, as  for  instance  to  pay  if  he  should  receive  funds  of  the 
debtor  to  the  amount  of  the  debt,  still  it  is  clear  the  statute 
does  not  apply,  as  the  debtor's  own  funds  are  in  effect  relied 
on  for  payment.2  And,  in  general,  where  the  defendant  has 


1  Wyrnan  v.  Smith,  2  Sandf.  (N.  Y.)  331;  Hitchcock  v.  Lukens,  8 
Porter  (Ala.)  333;  Andrews  v.  Smith,  Tyrw.  &  G.  173;  Loomis  v.  New- 
hall,  15  Pick.  (Mass.)  159;  Todd  v.  Tobey,  29  Me.  219;  Stephens  v. 
Pell,  2  Cromp.  &  M.  710;  Corbin  v.  McChesney,  26  111.  231;  Lucas  v. 
Payne,  7  Cal.  92;  Nelson  v.  Hardy,  7  Ind.  364;  Consociated  Presbyterian 
Society  of  Green's  Farms  v.  Staples,  23  Conn.  544 ;  Stoudt  v.  Hine,  45 
Pa.  St.  30;  Clymer  v.  De  Young,  54  Pa.  St.  118;  McLaren  v.  Hutchin- 
son,  22  Cal.  187;  May  ».  Nat.  Bank  of  Malone,  9  Hun  (N.  Y.)  108. 
Peck  v.  Goff,  25  Atl.  Rep.  (R.  I.)  690 ;  Smith  v.  Exchange  Bank,  110 
Pa.  St.  508;  Woodruff  v.  Scaife,  83  Ala.  152;  Ledbetter  v.  McGhees, 
84  Ga.  227;  Mason  v.  Wilson,  84  N.  C.  51 ;  Milliken  v.  Warner,  62  Conn. 
51 ;  Tuttle  v.  Armstead,  53  Conn.  175.  This  principle  seems  to  have  been 
lost  sight  of  in  Willard  v.  Bosshard,  68  Wise.  454.  But  see  Clark  v. 
Jones,  85  Ala.  127.  See  post.  §  206. 

a  McKeenan  v.  Thissel,  33  Me.  368;  Stilwell  v.  Otis,  2  Hilton  (N.  Y.) 
148;  Calkins  v.  Chandler,  36  Mich  320;  Walden  v.  Karr,  88  111.49; 
Wright  v.  State,  79  Ala.  262;  Hughes  v.  Fisher,  10  Col.  383;  Bice  v. 
Marquette  Building  Co.,  96  Mich.  24;  American  Lead  Pencil  Co.  v. 
Wolfe,  30  Fla.  360. 


CH.   X.]  GUARANTIES.  237 

in  his  hands  money  or  property  of  the  debtor,  deposited  with 
him  for  the  purpose  of  paying  the  debt,  he  may  be  sued  upon 
his  special  promise  to  pay  it,  without  the  production  of 
evidence  in  writing.1  It  is,  of  course,  necessary  that  such 
money  or  property  should  be  within  his  control ;  he  must  be 
himself  the  bailee  of  it,  and  not  the  mere  agent  of  others 
who  are  such  bailees.2  If  he  is  to  sell  or  otherwise  convert 
such  property  with  a  view  to  payment,  he  is  acting  as  the 
trustee  of  the  debtor  who  placed  it  in  his  hands,  and  of  those 
to  whose  benefit  the  proceeds  are  to  be  applied.3  And  it  has 
even  been  decided  that  a  promise  thus  to  sell  property  and 
pay  a  creditor,  coupled  with  a  guaranty  that  it  should  sell  for 
enough  to  pay  him,  was  not  such  a  promise  to  pay  as  was 
covered  by  the  statute.4  The  mere  possession  of  property  or 

1  Hilton  v.   Dinsmore,  21  Me.  410;  Cameron  v.  Clark,  11   Ala.  259; 
Laing  v.   Lee,  Spencer   (N.   J.)  337 ;    Goddard  v.  Mockbee,  5  Cranch 
(C.  C.)  666 ;  Stanley  v.  Hendricks,  13  Ired.  (N.  C.)  86 ;  Lee  v.  Fontaine, 
10  Ala.  755;  McKenzie  o.  Jackson,  4  Ala.  230;  Fullam  v.  Adams,  37  Vt. 
391 ;  Wright  v.  Smith,  81  Va.  777;  Martin  v.  Davis,  80  Wise.  371 ;  Mitts 
v.  McMorran,  64  Mich.  664 ;  Cock  v.  Moore,  18  Hun  (N.   Y.)  31;  Bailey 
v.  Bailey,  56  Vt.   398;  Barnett  v.  Pratt,  37  Neb.  349  ;  Watkins  v.  Sands, 
4  Brad.  (Til.  App.)  207;  Hamill  v.  Hall,  35  Pac.  Rep.  (Col.)  927;  Locke 
"   Humphries, 60  Ala.  117.    But  seeJackson  v.  Rayner,  12  Johns.  (N.  Y.) 
291;Bolknap».  Bender,  75  N.  Y.  446:  Ackley  v.  Parmenter,  98  N.  Y. 
206.     These  cases  establish,  for  the  State  of  New  York,  an  important 
limitation  of  the  rule  stated  in  the  text.    They  hold  (particularly  the  two 
last  in  which  the  subject  is  very  fully  considered)  that  where  the  defend- 
ant takes  property  of  the  third  party  for  the  purpose  of  paying  his  debt 
to  the  plaintiff  from  the  proceeds,  and  at  the  same  time  verbally  prom- 
ises the  plaintiff  to  pay  it.  the  duty  to  pay  does  not  arise  until  such 
proceeds  have  been   realized,   and  that  any  action  on  the  defendant's 
verbal  promise  before  that  time,  is  barred  by  the  Statute  of  Frauds.     In 
Belknap  v.  Bender  the  Court  expressed  obiter  the  further  opinion  that 
even  after  the  conversion  of  the  property,  the  defendant  is  bound  to  pay 
so  far  only  as  there  may  be  proceeds  applicable  to  that  purpose.     See 
Andern  v.  Ronney,  5  Espinasse,  254. 

2  Quin  v.  Hanford.  1  Hill  (N.  Y.)  82. 

8  Prather  v.  Vineyard,  4  Gilm.  (Til.)  40;  Drakely  r.  Deforest,  3  Conn. 
272. 

4  Lippincott  v.  Ashfield,  4  Sandf.  (N.  Y.)  611.  But  see  Shaaber  v 
Bushong,  105  Pa.  St.  514. 


238  STATUTE   OF  FRAUDS.  [CH.  X. 

funds  belonging  to  the  original  debtor,  not  deposited  with 
the  defendant  for  the  purpose  of  paying  the  debt,  will  not, 
however,  withdraw  his  verbal  promise  to  pay  it  from  the 
operation  of  the  Statute  of  Frauds.1  It  has  been  held  in 
Pennsylvania  that  where  the  defendant  represented  that  he 
had  funds  of  the  debtor,  and  promised  to  pay  the  debt  from 
them,  the  promise  was  original,  even  if  in  fact  he  had  no 
such  funds.2 

§  188.  The  statute  applies  to  promises  to  pay  the  debt  of 
another  ;  and  this  is  construed  by  the  courts  of  both  countries 
to  mean  the  debt  of  some  person  other  than  the  immediate 
parties  to  the  contract  of  guaranty  and  owed  to  one  of  those 
parties.3  A  verbal  promise,  therefore,  to  the  debtor  himself, 
to  pay,  or  to  furnish  him  the  means  of  paying,  his  own  debt, 
is  binding  notwithstanding  the  statute.  It  is  substantially 
the  same  thing  as  promising  to  pay  him  a  sum  of  money  to 
the  same  amount.4  Upon  a  familiar  principle  of  law  it  has 

1  Dilts  v.   Parke,  1   South.  (N.  J.)  219;  Simpson  v.   Nance,  1  Speers 
(S.  C.)  Law  4;  State  Bank  at  New   Brunswick   v.   Mettler,   2   Bosw. 
(N.  Y.)  392;  Weyer  r.  Beach,  14  Hun  (N.  Y.)  231;  Hughes  v.  Lawson, 
31  Ark.  613. 

2  Dock  v.  Boyd,  93  Pa.  St.  92. 

8  Eastwood  i?.  Kenyon,  11  Ad.  &  E.  438.  Mr.  Smith,  in  his  Lectures 
on  the  Law  of  Contracts,  remarks  that  it  is  a  singular  thing  that  this 
question  never  should  have  received  a  judicial  decision  until  so  recent  a 
case  (1840).  In  point  of  fact  it  was  determined  by  the  Supreme  Court  of 
Massachusetts  twenty  years  before.  Colt  v.  Root,  17  Mass.  229.  Jt  is 
is  now  firmly  settled  by  numerous  cases.  Hargreaves  v.  Parsons,  13 
Mees.  &  W.  561;  Reader  ».  Kinghan,  13  C.  B.  x.  8.  344;  Mersereau  v. 
Lewis,  25  Wend.  (N.  Y.)  243;  Weld  v.  Nichols,  17  Pick.  (Mass.)  538; 
Barker  v.  Bucklin,  2  Denio  (N.  Y.)  45;  Hardesty  r.  Jones,  10  Gill  & 
J.  (Md.)404;  Pratt  v.  Humphrey,  22  Conn.  317;  Preble  ».  Baldwin, 
6  Cush.  (Mass.)  549;  Pike  v.  Brown,  7  Cush.  (Mass)  133;  Alger  v. 
Scoville,  1  Gray  (Mass.)  391:  Fleram  P.  Whitmore,  23  Mo.  430;  Fiske 
v.  McGregory,  34  N.  H.  414:  Soule  v.  Albee,  31  Vt.  142;  Aldrich 
v.  Ames,  9  Gray  (Mass.)  76;  North  ».  Robinson,  1  Duvall  (Ky.)  71; 
Howard  ».  Coshow,  33  Mo.  118;  Morin  v.  Martz,  13  Minn.  191.  See 
Patton  v.  Mills,  21  Kansas  *  163;  Teeters  v.  Lambom,  43  Ohio  St.  144; 
Resseter  r.  Waterman,  37  N.  E.  Rep.  (HI.)  875. 

4  Hardesty  v.  Jones,  10  Gill  &  J.  (Md.)  404  ;  Alger  v.  Scoville.  1  Gray 
(Mass)  401;  Hubon  v.  Park,  116  Mass.  541;  Goetz  v.  Foos,  14  Minn. 


CH<    x.]  GUARANTIES.  239 

also  been  held  that  such  a  promise  may  be  sued  upon  by  the 
creditor.1  The  rule,  however,  is  to  be  understood  with  refer- 
ence only  to  cases  where  the  debtor  is  plaintiff.  A  promise 
to  him  that  his  debt  to  his  creditor  shall  be  paid,  may,  upon 
a  familiar  principle  of  law,  be  sued  upon  by  the  latter  where 
proper  privity  on  his  part  is  shown,  and  in  such  case  it  must 
be  proved  by  written  evidence.2 

§  189.  The  promise  which  the  statute  contemplates,  like 
any  other  promise  which  is  to  be  binding  in  law,  must  be 
founded  upon  a  sufficient  consideration  moving  between  the 
parties.  The  words  of  the  statute  are  negative,  that  the 
defendant  shall  not  bo  liable  unless  his  promise  is  in  writ- 
ing ;  and  the  converse  is  not  true,  that  when  in  writing  he 
shall  be  liable.  It  is  still  to  be  tried  and  judged  as  all  other 
agreements,  merely  in  writing,  are  by  the  common  law.3 
There  is,  of  course,  no  necessity  for  discussing  the  sufficiency 
of  different  kinds  of  consideration  to  support  such  a  promise, 
the  rule  of  law  that  any  benefit  to  the  one  party  or  any  injury 
to  the  other  will  suffice,  being  in  general  terms  entirely  ap- 
plicable. One  species  of  consideration,  however,  occurs  so 
frequently  in  such  cases  as  to  be  worthy  of  particular  notice ; 
namely,  the  engagement  of  the  creditor  to  forbear  enforcing 

265;  Whitesell  ».  Heiney,  58  Ind.  108;  Comstock  v.  Morton,  36  Mich. 
277;  Randall  ».  Kelsey,  46  Vt.  157;  Pratt  v.  Bates,  40  Mich.  37;  Oli- 
phant  v.  Patterson,  56  Pa.  St.  368;  Pike  v.  Brown,  7  Gush.  136;  Clapp 
p.  Law  ton,  31  Conn.  95;  Bexar  Building  Assoc.  v.  Newman,  25  S.  W. 
Rep.  (Tex.)  461;  Wood  v.  Moriarty,  15  R.  I.  518;  Poole  v.  Hintrager, 
60  Iowa  180;  Windell  r.  Hudson,  102  Tnd.  521;  Tnrpie  v.  Lowe,  114 
Ind.  37;  Leake  t>.  Ball,  116  Ind.  214;  Williams  v.  Rogers,  14  Bush  (Ky.) 
776;  McGraw  v.  Franklin,  2  Wash.  17.  See  Hoile  t'.  Bailey,  58  Wise. 
434;  Clinton  Bank  v.  Studemann,  74  Iowa  104.  But  see  Fehlinger  v. 
Wood,  134  Pa.  St.  517. 

1  Center  v.  McQuesten,  18  Kansas  476. 

a  Brown  o.  Hazen,  11  Mich.  219. 

8  Lord  Chief  Baron  Skynner  in  Rann  «>.  Hughes,  7  T.  R.  350,  note, 
where  the  suggestions  of  Mr.  Justice  Wilmot  in  Pillans  v  Van  Mierop, 
3  Burr.  1003,  are  noticed  and  rejected.  It  is  not  necessary  to  cite  from 
the  multitude  of  subsequent  cases  to  the  same  effect.  They  are  alluded 
to  in  this  and  the  following  sections  on  the  same  topic. 


240  STATUTE   OF   FRAUDS.  [CH.  X. 

his  pre-existing  demand,  whereupon  the  defendant  promises 
to  pay  it  or  see  it  paid.1 

§  190.  The  general  rule  that  forbearance  by  the  creditor  is 
a  sufficient  consideration  for  a  guaranty  of  the  debt  is  abun- 
dantly settled,2  and  it  clearly  includes  any  kind  of  indulgence 
by  which  his  remedy  is  postponed,  as  for  instance  the  adjourn- 
ment of  the  trial  to  a  later  day.3  It  appears  also  to  be  the 
better  opinion  that  such  postponement  need  not  be  for  a 
specific  length  of  time,  but  that  an  agreement  to  postpone 
indefinitely,  with  proof  of  actual  forbearance  for  a  reasonable 
term,  will  be  sufficient.4  A  mere  agreement  not  to  push  an 
execution,  however,  has  been  held  to  be  no  consideration  in 
the  nature  of  forbearance ;  the  court  apparently  regarding  the 
expression  as  too  vague  to  impose  any  duty  whatever  on 
the  creditor.6  And,  of  course,  where  the  creditor  has  not 
the  legal  right  to  sue  at  any  time  during  which  he  promises 
to  forbear  suit,  his  promise  is  no  consideration,6  though  it 
might  be  otherwise,  and  a  written  guaranty  enforced,  if  the 
right  of  action  should  enure  in  the  interim  and  the  debtor 
should  continue  to  avail  himself  of  the  original  promise.  In 
all  cases  there  must  be  an  agreement  by  the  creditor  to  for- 
bear ;  proof  of  his  having  done  so  in  point  of  fact  will  not 
suffice." 

1  A  parol  guaranty  of  the  debt  of  another  in  consideration  of  forbear- 
ance is  void  under  the   statute.     See  Gump  v.  Halberstadt,  15  Oregon 
356;  Watson  ».  Randall,  20  Wendell  (N.  Y.)  201. 

2  See  the  cases  cited  below.     And  that  it  applies  equally  in  cases  of 
promises  by  executors  and  administrators.    See  Rann  v.  Hughes,  7  T.  R. 
350,  note;  Parish  v.  Wilson,  Peake,  73;  Forth  r.  Stanton,  1  Saund.  210; 
Barber  v.  Fox,  2  Saund.  136;  Philpot  v.  Briant,  4  Bing.  717;  Goring  ». 
Goring,  Yelv.  11.  note  2  (Metcalfe's  ed.)  ;  Pratt  r.   Humphrey,  22  Conn. 
317;  Harrington  v.  Rich,  6  Vt.  666;  Taliaferro  v.  Robb,  2  Call  (Va.)  258. 

8  Stewart  ».  McGuin,  1  Co  wen  (N.  Y.)  99. 

4  The  rule  is  so  laid  down  by  Lord  Hobart  in  Mapes  v.  Stanley,  Cro. 
Jac.  183.     See  also  El  ting  v.  Vanderlyn,  4  Johns.  (N.  Y.)  237;  Thomas 
v.  Croft,  2  Rich.  (S.  C.)  Law  113.     But  see  Sage  v   Wilcox,  6  Conn.  81. 

5  M'Kinney  K  Qnilter.  4  McCord  (S.  C.)  409. 

6  Martin  r.  Black,  20  Ala.  309. 

7  Mecorney  v.  Stanley,  8   Cush.  (Mass.)   85;  Walker  v.  Sherman,  11 


CH.    X.]  GUARANTIES.  241 

§  191.  But  although  a  written  guaranty,  like  every  other 
legal  contract,  requires  a  consideration  for  its  support,  it 
does  not  necessarily  require  a  separate  and  special  one,  pass- 
ing directly  between  the  plaintiff  and  the  defendant.  Chan- 
cellor Kent  (then  Chief  Justice)  took  occasion,  in  the  case  of 
Leonard  v.  Vredenburgh,1  to  divide  considerations  of  guaran- 
ties into  three  classes;  the  first  of  which  is  where  the 
defendant's  promise,  though  collateral  to  the  principal  con- 
tract, is  made  at  the  same  time  with  it,  and  becomes  an 
essential  ground  of  the  credit  given  to  the  principal  or  direct 
debtor,  and  here,  he  says,  the  same  consideration  which  sup- 
ports the  principal  debtor's  obligation,  supports  also  that  of 
his  guarantor.  And  to  this  extent,  he  adds,  he  can  under- 
stand the  observation  of  Lord  Eldon,  that  "  the  undertaking 
of  one  man  for  the  debt  of  another  does  not  require  a  consid- 
eration moving  between  them,"2  meaning,  no  separate  con- 
sideration. His  second  class  is,  where  "the  collateral 
undertaking  is  subsequent  to  the  creation  of  the  debt  and 
was  not  the  inducement  to  it,  though  the  subsisting  liability 
is  the  ground  of  the  promise,  without  any  distinct  and  un- 
connected inducement.  Here  must  be  some  further  consid- 
eration shown,  having  an  immediate  respect  to  such  liability, 
for  the  consideration  for  the  original  debt  will  not  attach  to 
this  subsequent  promise."  As  to  the  first  class,  the  rule,  as 
stated,  is  undoubtedly  correct.3  As  to  the  second,  to  appre- 

Met.  (Mass.)  170;  Breed  r.  Hillhouse,  7  Conn.  523;  Sage  v.  Wilcox, 
6  Conn.  81;  Crafts  v.  Beale,  11  C.  B.  172;  Manter  v.  Churchill,  127 
Mass.  31. 

1  Leonard  v.  Vredenbnrgh,  8  Johns.  (N.  Y.)  29. 

8  Minet,  ex  parte,  14  Ves.  190. 

8  Rabaudr.  D'Wolf,  1  Paine  (C.C.)  580;  Larson  ».  Wyman,  14  Wend. 
(N.  Y.)  246;  Townsley  r.  Sumrall,  2  Pet.  (U.  S.)  170;  Nelson  v.  Boyn- 
ton,  3  Met.  (Mass.)  396;  Simons  v.  Steele,  36  N.  H.  73;  Moses  v.  Law- 
rence County  Bank,  149  U.  S.  298.  Leonard  v.  Vredenburgh  itself 
presented  the  same  point,  to  which  it  is  therefore  an  authority,  and  a 
most  respectable  one.  The  writer,  however,  cannot  but  remark,  that  if 
the  Chief  Justice  had  on  that  occasion  refrained  from  passing  any  ex- 
pression of  opinion  upon  the  other  questions  alluded  to  in  the  text,  much 

16 


242  STATUTE   OF  FRAUDS.  [CH.  X. 

hend  its  full  purport,  we  must  notice  also  the  third  class 
mentioned  by  the  Chancellor,  namely,  where  the  promise  to 
pay  the  debt  of  another  arises  out  of  some  new  and  original 
consideration  of  benefit  or  harm  moving  between  the  newly 
contracting  parties ;  in  which  case,  he  says,  the  promise  is 
not  within  the  statute  at  all.  This  last  doctrine  will  be  the 
subject  of  particular  examination  hereafter.  But  we  remark 
here  that,  considering  both  together,  the  principle  intended 
to  be  laid  down  clearly  is,  that  the  only  consideration  which 
will  support  a  written  guaranty  of  a  pre-existing  debt,  with- 
out taking  the  guaranty  out  of  the  statute  altogether  (a  case 
with  which  we  have  at  present  nothing  to  do),  is  such  a  one 
as  has  an  immediate  respect  to  that  debt.  This  rule,  thus 
narrowly  stated,  is  certainly  open  to  much  doubt.  If  ad- 
mitted, it  would  seem  that  forbearance  on  the  part  of  the 
creditor  to  enforce  his  demand  against  the  original  debtor, 
which  we  have  just  seen  is  a  sufficient  consideration  to  sup- 
port a  written  guaranty  of  it,  must  be  the  only  such  consider- 
ation. To  have  immediate  respect  to  the  original  debt,  the 
consideration  passing  from  the  creditor  must  apparently  be, 
either  that  the  debt  is  forborne  for  a  time  or  that  it  is  entirely 
released ;  in  which  latter  case  it  is  clear  that  the  defendant's 
promise  is  not  collateral  to,  but  a  substitute  for,  the  original 
debtor's  liability,  and  not  within  the  statute  at  all.  It  is 
not,  however,  necessary  in  this  place  to  say  more  than  that 
some  consideration,  beyond  that  upon  which  the  original 
credit  was  granted,  must  certainly  appear  in  order  to  support 
the  guaranty,  though  put  in  writing,  if  made  subsequently  to 
the  creation  of  the  original  debt.  To  this  extent  there  is 
entire  uniformity  in  the  decisions.1  Of  course,  any  consid- 

of  the  existing  perplexity  on  questions  of  guaranties  within  the  statute 
might  have  been  avoided.  Highland  t;.  Dresser,  35  Minn.  345. 

1  Fish  v.  Hutchinson,  2  Wils.  94;  Chater  v.  Beckett,  7  T.  R.  201; 
Wain  v.  Warlters,  5  East  10;  D'Wolf  v.  Rabaud,  1  Pet.  (U.  S.)  476; 
Sears  t'.  Brink,  3  Johns.  (N.  Y.)  210;  Gillighan  v.  Boardman,  29  Me.  79; 
Huntress  v.  Patten,  20  Me.  28;  Ware  v.  Adams,  21  Me.  177;  Elliott  v. 


CH.   X.]  GUARANTIES.  243 

eration  which  would  suffice  to  take  a  guaranty  of  a  pre-exist- 
ing debt  out  of  the  statute,  would  suffice  to  support  it  if  put 
in  writing.  And  it  is  also  held  that  where  there  is  already 
a  past  debt,  the  giving  of  a  new  credit  to  the  same  party  will 
be  a  good  consideration'  to  support  a  guaranty  of  both  the 
new  and  the  old  debt.1 

§  192.  Having  now  considered  what  is  meant  by  the  debt, 
default,  or  miscarriage  of  another,  and  what  is  meant  by  the 
special  promise  of  the  defendant,  it  remains  to  be  ascertained 
when  the  two  are  so  connected  as  to  make  a  case  within  the 
statute;  or,  in  other  words,  when  the  defendant's  special 
promise  is  to  answer  for  the  third  party's  debt,  default,  or 
miscarriage.  It  has  come  to  be  customary  to  speak  of  such 
special  promise  as  collateral  to  the  obligation  of  the  original 
debtor;  and  though  the  use  of  that  term,  as  defining  the 
nature  of  the  promise  which  the  statute  means  to  embrace, 
has  been  sometimes  criticised,  it  is  believed  to  be,  not  only 
in  the  main  but  in  strictness,  correct.  As  will  be  explained 
hereafter,  there  are  many  cases  where  the  obligation  of  the 
•  defendant  is  concurrent  with  that  of  the  third  party,  and  is 
discharged  when  that  is  discharged,  and  yet  is  not  held  to  be 
affected  by  the  statute ;  and  for  the  sole  reason,  as  our  sub- 
sequent inspection  of  those  cases  will  show,  that  it  is  not 
essentially  an  obligation  of  guaranty  of,  or  in  other  words, 
not  essentially  collateral  to,  that  of  the  third  party.  Under- 
standing by  a  collateral  obligation,  one  which  is  made  for  the 
purpose  of  securing  the  performance  of  another,  and  which 
exists  only  so  long  as  that  other  exists,  it  may  fairly  bo  said 
that  collateral  promises  are  just  what  the  statute  intends 
shall  be  proved  by  writing.  The  question  of  phraseology  is, 
however,  of  little  consequence,  except  so  far  as  it  may  be 
necessary  to  justify  the  occasional  use  of  that  term  hereafter. 

Giese,  7  Harr.  &  ,T.  (Md.)  457;  Crane  ».  Bulloch,  R.  M.  Charl.    (Ga.) 
318;  Rose  v.  O'Linn,  10  Neb.  304;  Crooks  r.  Tally,  50  Cal.  254. 

1  Loomis  v  Xewhall,  15  Pick.  (Mass.)   159;  Hargroves  v.  Cooke,   15 
Ga.  321. 


244  STATUTE   OF   FRAUDS.  [CH.   X. 

§  193.  In  the  first  place,  the  two  obligations  must  concur 
or  run  together.  Take  the  cases  of  special  promises  to  answer 
for  the  payment  of  pre-existing  debts  of  third  persons.  Here 
the  statute  does  not  apply  if  the  liability  of  the  original  debtor 
is  extinguished  by  the  making  and  acceptance  of  the  special 
promise.  It  has  been  argued  that,  as  to  such  pre-existing 
liabilities,  the  language  of  the  statute  did  not  necessarily 
require  that  they  should  continue  to  exist  concurrently  with 
the  defendant's  promise,  but  that  if  one  undertakes  "  to  sat- 
isfy the  debt  of  a  person  already  indebted,  in  consideration  of 
his  instantaneous  release,  there  seems  to  be  no  good  reason 
for  saying,  that  this  is  not  a  promise  to  answer  for  the  debt 
of  another  within  the  reason  and  contemplation  of  the  Act  of 
Parliament."1  On  the  other  hand,  it  may  be  said  that  if 
such  had  been  the  intention  of  Parliament,  the  more  apt  lan- 
guage would  have  been  that  no  action  should  be  brought  to 
charge  a  person  upon  any  special  promise  to  pay  another's 
debt,  or  to  answer  for  his  default  or  miscarriage,  and  that  by 
the  exclusive  use  of  the  latter  expression,  which,  as  applied 
to  executory  liabilities  of  another,  undoubtedly  means  a  col- 
lateral or  contingent  engagement  merely,  it  was  intended  to 
put  all  special  promises  upon  that  same  footing.  And  such 
would  appear  to  have  been  the  general  policy  of  the  statute ; 
for  the  danger  of  perjury  was  in  the  temptation  to  try  to  hold 
a  third  party,  where  the  claim  against  him  who  had  been 
originally  liable  had  proved  worthless.  But,  however  all 
this  may  be,  it  is  now  clearly  settled  by  authority  in  both 
countries,  that  if,  by  the  arrangement  between  the  parties, 
the  original  debtor  is  discharged,  the  defendant's  promise  is 
good  without  writing;  it  clearly  raises,  in  such  case,  an 
original  and  absolute,  and  not  a  collateral  and  contingent, 
liability.2  Upon  this  principle  it  has  been  held  in  England 

1  Roberts  on  Frauds,  225. 

2  Goodman  v.  Chase,  1  Barn.  &  Aid.  297;  Bird  i».  Gammon,  3  Bing. 
N.  C.  883;  Butcher  ».  Steuart,  11  Mees.   &  W.  857;  Gull  v.  Lindsay, 
4  Exch.  45;  Stone  r.  Symmes,   18  Pick.  (Mass.)  467;  Curtis  v.  Brown, 


CH.   X.]  GUARANTIES.  245 

that  an  agreement  to  convert  a  separate  into  a  joint  debt  is 
not  within  the  statute ;  the  effect  being  to  create  a  new  debt, 
in  consideration  of  the  former  being  extinguished.1  And  so 
a  promise  to  pay  the  debt  of  another,  in  consideration  that 
the  plaintiff,  who  has  taken  him  on  a  ca.  sa.,  will  discharge 
him  out  of  custody,  is  original  and  not  within  the  statute ; 
such  discharge  working  an  extinguishment  of  the  debt.2  Of 
course  it  must  be  a  question  to  be  determined  upon  all  the 


5  Cush.  (Mass.)  492,  per  Shaw,  C.  J.  ;  Anderson  v.  Davis,  9  Vt.  136 ; 
Watson  v.  Randall,   20  Wend.   (N.   Y.)  201;    Allshouse  v.  Ramsay,   6 
Whart.  (Pa.)  331;    Draughan   v.  Bunting,  9  Ired.  (N.  C.)  10;  Click  v. 
McAfee,  7  Port.  (Ala.)  62  ;  Armstrong  v.  Flora,  3  T.  B.  Mon.  (Ky.)  43  ; 
Wood  v.  Corcoran,  1  Allen  (Mass.)  405;  Lord  v.  Davison,  3  Allen  (Mass.) 
131 ;    Haggerty  v.  Johnson,  48  Ind.  41 ;  Mead  v.  Keyes,  4  E.  D.  Smith 
(N.  Y.)  510;  Andre  v.  Bodman,  13  Md.  241;  White  v.  Solomonsky,  30 
Md.  585;  Eddy  v.  Roberts,  17  111.  505;  Gleason  v.  Briggs,  28  Vt.   135 ; 
Watson  v.  Jacobs,  29  Vt.  169 ;  Quintard  v.  D'Wolf,  34  Barb.  (N.  Y.)  97; 
Booth  v.  Eighmie,  60  N.  Y.  238  ;  Griswold  «.  Griswold,  7  Lans.  (N.  Y.) 
72;  Yale  v.  Edgerton,  14  Minn.   194;    Parker  v.    Heaton,   55   Ind.    1. 
Whittemore  v.  Wentworth,  76  Me.  20;  Thornton   v.   Guice,  73  Ala.  321 ; 
Carlisle  w.  Campbell,  76  Ala.  247;  Doss  v.  Peterson,  82  Ala.  253;  Miller 
v.  Lynch,  17  Oregon  61;  Brant  v.  Johnson,  46  Kansas  389;  Webster  v. 
Le  Compte,  74  Md.  249;  Keadle  v.  Siddens,  5  Ind.    App.   Ct.  8;  Eden 
v.  Chaffee,  160  Mass.  225.      So  if  the  estate  be  discharged,  the  executor's 
promise  to  pay  the  debt  is  binding  without  writing.     Harrington  v.  Rich, 

6  Vt.  666;  Robinson  v.   Lane,  14  Sm.    &  M.    (Miss.)  161;    Mosely  v. 
Taylor,  4  Dana  (Ky.)  542;  Bott  v.  Barr,  95  Ind.  243.     If  the  discharge 
be  by  protracted  forbearance  in  pursuance  of  a  general  agreement  to 
forbear  for  an  indefinite  time,  qucere  if  the  statute  applies.     Templetons 
v.  Bascom,  33  Vt.  132.     See  Brightman  v.  Hicks,  108  Mass.  246;  Bunt- 
ing v.  Darbyshire,  75  111.  408.     In  Skelton  v.  Brewster,  8  Johns.  (N.  Y.) 
376,  and  Cooper  v.  Chambers,  4  Dev.  (N.  C.)  261,  the  debtor  was  dis- 
charged, but  the  court  took  another  and  a  less  satisfactory  ground  for 
their  decision.     In  Tompkins  r.  Smith,  3  Stew.  &  P.  (Ala.)  54,  the  court 
"think  there  is  no  difference  between    a  promise  on  consideration  of 
giving  day  to  the  original  debtor,  and  his  discharge,  —  they  both  relate 
to  his  indebtedness."  (!) 

1  Ex  parte  Lane,  1  De  Gex  300.     See  Corbin  v.  McChesney,  26  111.  231,. 

2  Lane  ».  Burghart,  1  Q.  B.  933;  Goodman  r  Chase,  1   Barn.  &  Aid'. 
297.     So  where  the  consideration  is  only  a  promise  to  discharge;  a  mere 
executory  agreement.     Butcher  v.  Steuart,  11  Mees.  &  W.  857;  Cooper  v. 
Chambers,  4  Dev.  (N.  C.)  261. 


246  STATUTE   OF  FRAUDS.  [CH.    X. 

circumstances  of  each  case,  whether  the  original  debtor  has 
been  in  fact  discharged.1 

§  194.  It  must  be  observed  here,  that  though  there  is  no 
doubt  that,  when  the  original  debtor  has  been  discharged,  the 
defendant's  promise  is  good  without  writing,  it  is  necessary 
to  be  careful  in  applying  the  converse  of  the  rule ;  namely, 
that  in  order  that  the  defendant's  promise  should  be  good 
without  writing,  the  original  debtor  should  be  discharged. 
This  is  undoubtedly  true  in  cases  of  mere  guaranty,  where  the 
relation  of  the  defendant  to  the  plaintiff  is  principally  and 
essentially  that  of  surety  for  the  debt  owing  to  him,  and 
nothing  else.  But  there  are  many  cases  in  which  the  plain- 
tiff may  not  have  discharged  his  original  debtor,  and  may 
still  have  a  double  remedy,  and  yet  the  promise  of  the  defend- 
ant be  good  without  writing ;  its  object  and  character  being 
other  than  that  of  guaranteeing  the  debt,  though  the  dis- 
charge of  the  debt  may  be  incidental  to  the  performance  of 
that  promise.  These  cases  form  a  most  important  topic  in 
the  present  chapter,  and  are  hereafter  separately  discussed.2 


1  The  entry  of  such  discharge  on  the  books  of  the  plaintiff,  and  his 
debiting  the  new  promisor  with  the  amount,  will  be  sufficient.     Corbett  v, 
Cochran,  3  Hill  (S.  C.)  41;  Langdon  v.   Hughes,  107  Mass.  272.     See 
Harris  v.  Young,  40  Ga.  65.     But  an  agreement  to  submit  a  demand  to 
arbitration  is  not  such  an  extinguishment  of  it  that  a  guaranty  made  in 
consideration  of  such  an  agreement  shall  be  taken  out  of  the  statute. 
Harrington  v.  Rich,  6  Vt.  666.     The  case   of  Mallet  r.  Bateman,  L  R. 
1  C.  P.  163  should,  it  would  seem,  have  been  decided  for  the  plaintiff  on 
the  ground  that  by  the   agreement  between  the  parties  the  plaintiff's 
claim  against  the  third  party  was  virtually  extinguished.     Holm  v.  Sand- 
berg:.  32  Minn   427. 

2  See  post,  §§  207  et  seq.     Mr.  Chitty,  after  referring  to  some  of  these 
cases,  remarks  that  they  would  probably  be  held  otherwise  now,  because 
th°  original  debtors  therein  were  not  discharged  ;  but  doubtless  he  had  not 
had  occasion  to  give  them  very  close  attention.     The  distinction  is  recog- 
nized in   1   Saund.  211  b  (note  to  Forth  v.   Stanton).     "  The   question 
whether  eich  particular  case  comes  within  this  clause  of  the  statute  or 
not,  depends  on  the  fact  of  the  original  party  remaining  liable,  coupled  with 
the  absence  of  any  liability  on  the  part  of  the  defendant  or  his  property,  except 
such  as  arises  from  his  express  promise." 


CH.  X.]  GUARANTIES.  247 

§  195.  That  the  two  liabilities  must  concur,  when  the 
promise  of  the  defendant  is  to  answer  for  the  third  person's 
discharge  of  his  liability  contemporaneously  incurred  (or  for 
what  may  be  technically  called  his  default  or  miscarriage), 
is  even  more  clearly  true  than  in  the  case  of  a  guaranty  of 
an  old  debt.1  If,  for  instance,  goods  are  sold  upon  the  sole 
credit  and  responsibility  of  the  defendant,  though  delivered 
to  a  third  person,  there  is  no  liability  to  which  that  of  the 
defendant  can  be  collateral,  and  consequently  it  does  not 
require  a  memorandum  in  writing.2  In  such  case,  the  com- 
mon action  of  indebitatus  assumpsit  is  the  proper  remedy 
against  him,  and  a  special  count  upon  the  promise  is  not 
necessary,  as  it  would  be  if  his  undertaking  were  collateral. 
On  the  same  principle,  it  has  been  held  that  when  one 
advances  money  at  the  request  of  another  (and  on  his  promise 
to  repay  it)  to  pay  the  debt  of  a  third  party,  as  the  payment 
creates  no  debt  against  such  third  party,  not  being  made  at 
all  upon  his  credit,  the  liability  of  the  party  on  whose  request 
and  promise  it  was  made  is  original  and  not  collateral,  and 
not  within  the  Statute  of  Frauds.3 

§  196.  It  was  held  in  the  Supreme  Court  of  Vermont,  that 
where  the  original  debtor's  liability  is  contingent,  and,  the 
contingency  occurring,  he  is  discharged,  the  defendant's 
guaranty  made  before  it  occurred  was  discharged  with  it. 
"The  accessory  obligation  must  necessarily  fall  with  the 
principal  obligation."4  And,  conversely,  if  the  obligation, 
either  on  the  part  of  the  third  party  or  on  the  part  of  the 
defendant,  is  simply  contingent  at  the  time  of  the  contract, 

'  Roberts  on  Frauds,  216;  Tileston  v.  Nettleton,  6  Pick.  (Mass.)  509 ; 
Doyle  v.  White,  26  Me.  341 ;  Arbuckle  p.  Hawks,  20  Vt.  538;  Antonio  v. 
Clissey,  3  Rich.  (S.  C.)  Law  201  ;  Brown  P.  Curtiss,  2  N.  Y.  225;  Booker 
v.  Tally,  2  Humph.  (Tenn.)  308;  Rhodes  v.  Leeds,  3  Stew.  &  P.  (Ala.)  212. 

2  McCaffil  P.  Radcliffe,  3  Rob.  (N.  Y.)  445;  Brown  v.  Harrell,  40 
Ark.  429. 

8  Pearce  v.  Blagrave,  3  Cora.  Law  338;  Prop'rs  of  Upper  Locks  r. 
Abbott,  14  N.  H.  157.  See  Mountstephen  v.  Lakeman,  L.  R.  7  Q.  B.  196. 

4  Smith  P.  Hyde,  19  Vt.  4. 


248  STATUTE   OF  FRAUDS.  [CH.   X. 

the  happening  of  the  contingency  in  the  interim  can  have  no 
effect  to  draw  the  case  within  the  operation  of  the  statute.1 
The  case  of  Buckmyr  v.  Darnall 2  is  strongly  illustrative  of 
this  point.  There  the  defendant,  in  consideration  that  the 
plaintiff  at  his  request  would  hire  a  horse  to  one  English  to 
ride  to  another  town,  promised  that  English  should  return 
him  again.  At  the  first  hearing  of  the  case,  a  majority  of  the 
judges  thought  the  defendant's  promise  was  not  within  the 
statute,  because  English  was  not  liable  upon  any  contract ; 
but  that,  if  any  action  could  be  maintained  against  him,  it 
must  be  for  a  subsequent  wrong  in  detaining  the  horse  or  actu- 
ally converting  it  to  his  own  use.  The  last  day  of  the  term, 
the  Chief  Justice  delivered  the  opinion  of  the  court.  He 
said  the  objection  had  been  made  by  some  of  the  judges  that 
if  English  did  not  deliver  the  horse,  he  was  not  chargeable 
in  an  action  on  the  promise,  but  in  trover  or  detinue,  which 
are  founded  upon  the  tort,  and  for  matter  subsequent  to  the 
agreement.  But  it  was  held  by  all  that,  as  English  might  be 
charged  in  the  bailment  in  detinue  on  the  original  delivery, 
and  detinue  was  the  adequate  remedy,  the  promise  of  the 
defendant  was  collateral  and  within  the  reason  and  the  very 
words  of  the  statute.  This  case  has  been  already  referred 
to,  as  showing  that  the  defendant's  assumpsit  may  be  col- 
lateral to  a  third  person's  liability  in  tort,  but  it  determines 
also  by  implication,  that  that  liability  must  begin  to  run 
with  the  defendant's  assumpsit;  for  it  was  only  upon  the 
ground  that  detinue  would  lie,  the  root  of  which  action  was 
the  original  delivery,  raising  at  the  instant  a  contract  for 

1  Harrington  v.  Rich,  6  Vfc.  666  ;  Elder  v.  Warfield,  7  Harr.  &  J.  (Md.) 
391,  per  Buchanan,  C.  J.     Ante,  §  164. 

2  Buckmyr  v.  Darnall,  2  Ld.  Raym.  1085;  1    Salk.  27;  6  Mod.  248. 
Lord  Hardwicke,  in  Tornlinson  v.  Gill,  Ambler  330,  commenting  on  this 
case,  remarks  that  the  distinction  taken  in  it  "  is  a  very  slight  and  cob- 
web distinction."     It  is  not  easy  to  see,  however,  how  it  related  to  the 
case  before  him.     I  do  not  understand  his  Lordship  to  condemn  the  doc- 
trine in  regard  to  the  necessity  of  the  liability  of  the  third  party  existing 
at  the  time  of  the  defendant's  promise. 


CH.   X.]  GUARANTIES.  249 

the  redelivery,  that  the  judges  found  themselves  enabled  to 
apply  the  statute. 

§  197.  As  to  the  liability  of  the  person  for  whose  benefit 
the  promise  is  made,  it  was  laid  down  by  Mr.  Justice  Buller, 
in  the  case  of  Matson  v.  Wharam,1  that  if  he  be  himself  liable, 
at  all  the  promise  of  the  defendant  must  be  in  writing.  If 
this  rule  be  understood  as  confined  to  cases  where  the  third 
party  and  the  defendant  are  liable  in  the  same  way,  and  to  do 
the  same  thing,  the  one  as  principal  and  the  other  as  surety, 
it  may  be  accepted  as  the  uniform  doctrine  of  all  the  cases 
both  in  England  and  in  our  own  country.2  The  defendant  is 
said  to  come  in  aid  to  procure  the  credit  to  be  given  to  the 
principal  debtor.3  The  question  therefore  ultimately  is,  upon 
whose  credit  the  goods  were  sold  or  the  money  advanced,  or 
whatever  other  thing  done  which  the  defendant  by  his  prom- 
ise procured  to  be  done.  If  any  credit  at  all  be  given  to  the 
third  party,  the  defendant's  promise  is  required  to  be  in  writ- 
ing as  collateral.4  And  the  rule  applies  equally,  where  there 

1  Matson  v.  Wharam,  2  T.  R.  80. 

3  Barber  v.  Fox,  1  Stark.  270 ;  Buckmyr  v.  Darnall,  1  Salk.  27;  Tiles- 
ton  v.  Nettleton,  6  Pick.  (Mass.)  509;  Peabody  v.  Harvey,  4  Conn.  119; 
Huntingdon  v.  Harvey,  4  Conn.  124;  Newell  v.  Ingraham,  15  Vt.  422; 
Cutler  v.  Hinton,  6  Rand.  (Va.)  509 ;  Ware  v.  Stephenson,  10  Leigh  (Va.) 
155;  Xoyes  v.  Humphreys,  11  Grat.  (Va.)  636;  Leland  v.  Creyon,  1 
McCord  (S.  C.)  Law  100;  Taylor  v.  Drake,  4  Strobh.  (S.  C.)  Law  431; 
Puckett  v.  Bates,  4  Ala.  390:  Caperton  v.  Gray,  4  Yerg.  (Tenn.)  563; 
Hall  v.  Wood,  4  Chand.  (Wise.)  36;  Price  v.  Chicago  M.  &  S.  P.  R.  R., 
40  Mo.  App.  189;  Robertson  v.  Hunter,  29  S.  C.  9;  Ollever  v.  Duval,  32 
S.  C.  273;  Simpson  v.  Harris,  21  Nev.  353;  Dougerty  v.  Stone,  66  Hun 
(N.  Y.)  498;  Greene  v.  Latcham,  2  Col.  Ct.  of  App.  416  ;  McGaughey 
Bros.  v.  Latham,  63  Ga  67;  Daniel  r.  Mercer,  63  Ga.  442;  Reynolds  v. 
Simpson,  74  Ga.  454. 

8  Aldrich  v.  Jewell,  12  Vt.  125. 

*  Anderson  v.  Hayman,  1  H.  Black.  120;  Cahill  v.  Bigelow,  18  Pick. 
(Mass.)  369;  Chase  v.  Day,  17  Johns.  (N.  Y.)  114;  Brady  v.  Sackrider, 
1  Sandf.  (N.  Y.)  514;  Elder  v.  Warfield,  7  Harr.  &  J.  (Md.)  391;  Conolly 
v.  Kettlewell,  1  Gill  (Md.)  260;  Xorris  v.  Graham,  33  Md.  56;  Larson  v. 
Wyman,  14  Wend.  (X.  Y.)  246;  Darlington  i».  McCunn,  2  E.  D  Smith 
(X.  Y.)  411;  Hanford  v.  Higgins,  1  Bosw.  (X.  Y.)441;  Allen  v.  Scarff, 
1  Hilton  (X.  Y.)  209 ;  Bushee  v.  Allen,  31  Vt.  613 ;  Walker  v.  Richards, 


250  STATUTE   OF  FBAUDS.  [CH.   X. 

is  already  an  existing  liability  of  the  principal,  and  the  evi- 
dence shows  that  the  plaintiff,  by  accepting  the  defendant  as 
surety,  does  not  release  his  claim  upon  the  principal.1  All 
the  cases  show  that  it  does  not  matter  upon  which  of  the  two 
parties  the  plaintiff  principally  depends  for  payment,  so  long 
as  the  third  party  is  at  all  liable  to  him  to  do  the  same  thing, 
which  the  defendant  has  engaged  to  do.2  If,  however,  the 
credit  is  given  to  both  jointly,  as  neither  can  be  said  to  be 
surety  for  the  other  to  the  creditor,  their  engagement  need 
not  be  in  writing.3 

§  197  a.  It  has  been  suggested  that  the  rule  above  stated 

39  N.  H.  259;  Dixon  v.  Frazee,  1  E.  D.  Smith  (N.  Y.)  32;  Steele  r. 
Towne,  28  Vt.  771;  Hill  v.  Raymond,  3  Allen  (Mass.)  540;  Swift  v. 
Pierce,  13  Allen  (Mass.)  136  ;  Boykin  v.  Dohlonde,  1  Sel.  Cas.  Ala.  502; 
Bresler  v.  Pendell,  12  Mich.  224;  Welch  v.  Marvin,  36  Mich.  59;  Murphy 
v.  Renkert,  12  Heisk.  (Tenn.)  397 ;  Whitman  v.  Bryant,  49  Vt.  512; 
Read  v.  Ladd.  Edm.  (N.  Y.)  Sel.  Cas.  100;  Rottman  v.  Fix,  25  Mo.  App. 
571 ;  West  v.  O'Hara,  55  Wise.  645 ;  Weisel  t>.  Spence,  59  Wise.  301 ; 
Treat  Lumber  Co.  v.  Warner,  60  Wise.  183;  Langdon  v.  Richardson, 
58  Iowa  610;  Wills  v.  Ross,  77  Ind.  1;  Hagadorn  v.  Lumber  Co.,  81 
Mich.  56;  Cole  v.  Hutchinson,  34  Minn.  410;  Clark  v.  Jones,  87  Ala. 
474 ;  Radcliff  v.  Poundstone,  23  W.  Va.  724 ;  Bugbee  v.  Kendricken,  130 
Mass.  437 ;  Osborn  v.  Emery,  51  Mo.  App.  408 ;  Mackey  v.  Smith, 
21  Oregon  598 ;  Harris  c  Frank,  81  Cal.  280;  Gill  v.  Read,  55  Mo.  App. 
246;  Kansas  City  Sewer  Pipe  Co.  ».  Smith,  36  Mo.  App.  608;  Bayles  r. 
Wallace,  56  Hun  (N.  Y.)  428.  Ante,  §  157. 

1  Fish  v.  Hutchinson,  2  Wils.  94;  Curtis  v.  Brown,  5  Cush.  (Mass.) 
488  ;  Walker  v.  Hill,  119  Mass.  249  ;  Minto  v.  McKnight,  28  111.  App.  Ct. 
239;  Home  National  Bank  v.  Waterman,  30  111.  App.  Ct.  535. 

2  See  also  Jack  v.  Morrison,  48  Pa.  St.  113.     The  decision  in  Reed  v. 
Holcomb,  31   Conn.  360,  seems  to  be  in  conflict  with  this  well   settled 
principle,  though  it  is  disavowed  by  the  opinion. 

«  Wainwright  v.  Straw,  15  Vt.  215;  Eddy  v.  Davidson,  42  Vt.  56; 
Matthews  v.  Milton,  4  Yerg.  (Tenn.)  579  ;  Hetfield  v.  Dow,  27  N.  J.  L.  440; 
Gibbs  v.  Blanchard,  15  Mich.  292  ;  Swift  v.  Pierce,  13  Allen  (Mass.)  136. 
The  decision  in  Schultz  v.  Noble,  77  Cal.  79,  can  be  better  sustained  on  this 
ground  than  on  that  adopted  by  the  court,  viz.,  that  when  a  broker  bought 
and  carried  stock  for  a  customer  at  the  request  of  the  defendant  and  upon 
the  strength  of  his  promise  to  make  good  all  losses,  a  settlement  by  en- 
dorsing the  note  of  the  broker,  and  then  refusing  to  meet  the  endorse- 
ment at  maturity,  was  a  performance  of  the  contract,  which  at  law 
prevented  the  statute  from  applying.  Boyce  v.  Murphy,  91  Ind.  1. 


CH.  X.]  GUARANTIES.  251 

requiring  the  defendant's  special  promise  to  be  in  writing, 
whenever  the  third  party  is  liable  at  all,  should  be  modified 
by  the  limitation  that  such  liability  of  the  third  party  must 
be  "made  the  foundation  "  of  the  contract  between  the  plain- 
tiff and  the  defendant.1  This  is  one  of  those  general  expres- 
sions under  which  lurks  great  danger  to  the  practical  value 
of  the  Statute  of  Frauds.  There  are  cases  where  the  third 
party's  liability  is  not  the  foundation  of  the  contract  between 
the  plaintiff  and  the  defendant,  in  the  sense  that  the  nature 
of  the  transaction  between  them  is  such  as  to  throw  upon  the 
defendant  an  obligation  to  the  plaintiff,  independently  of  the 
fact  that  any  third  party  is  liable  to  him ;  and  here  it  is  true, 
as  a  matter  of  the  legal  character  of  the  defendant's  obliga- 
tion, that  it  is  not  founded  upon  the  third  party's  obligation; 
and  to  such  cases  the  statute  does  not  apply.2  But  if  the 
phrase  we  are  considering  means  (as  it  has  been  taken  to 
mean)3  that  the  third  party's  concurrent  liability  does  not 
make  the  statute  applicable  if  the  plaintiff  did  not  rely  upon 
it,  but  relied  only  on  the  defendant's  promise,  such  a  modifi- 
cation of  the  rule  cannot  safely  be  admitted.  How  can  it  be 
ascertained  whether  or  not  the  third  party's  liability  was  in 
this  sense  the  foundation  of  the  contract  between  the  others  ? 
It  would  seem  to  be  reducing  the  question  of  the  application 
of  the  statute  to  the  question  of  the  state  of  mind  of  the 
parties,  such  as  could  never  be  put  to  a  jury  without  substi- 
tuting their  judgment  or  conjecture  for  the  sanction  of  the 
statute.4 

§  198.  It  is  sometimes  a  matter  of  difficulty  to  determine 
to  whom  the  credit  has  been  actually  given,  whether  to  the 
defendant  alone,  in  which  case  the  debt  is  his  own,  and  his 
promise  is  good  without  writing,  or  to  the  third  party  to  any 

1  Willes,  J.,  in  Mountstephen  v.  Lakeman,  L.  R.  7  Q.  B.  202. 

*  See  post,  §  212. 

•  Vogel  v.  Melms,  31  Wise.  306. 

4  The  remark  quoted  from  Willes,  J.,  was  not  necessary  to  the  judg- 
ment in  the  case,  which  is  stated  and  applied,  post,  §  198. 


252  STATUTE   OF  FKAUDS.  [CH.   X. 

extent,  in  which  case  the  defendant's  promise,  being  only 
collateral  to  or  in  aid  of  the  third  party's  liability,  requires 
a  writing  to  support  it.  In  the  absence  of  any  other  circum- 
stance to  show  the  understanding  of  the  parties,  the  expres- 
sions used  by  the  party  promising  are  doubtless  to  be  resorted 
to.  It  has  been  held  by  Holt,  C.  J.,  that  a  promise  "to  be 
the  paymaster  "  of  such  a  one  as  shall  render  services  to  a 
third  party,  is  to  be  taken  as  an  absolute  engagement  show- 
ing the  promisor  alone  to  be  liable ;  but  that  if  the  words  are 
"to  see  him  paid,"  this  is  only  a  promise  to  pay  if  the  third 
party  does  not,  and  is  collateral  and  within  the  statute. J  On 
the  other  hand,  it  seems  to  have  been  considered  in  subse- 
quent English  cases  that  the  latter  expression,  uncontrolled 
by  circumstances,  would  not  necessarily  import  a  collateral 
engagement.2  But  even  a  promise  in  terms  "to  pay  "  does 
not  make  the  promisor  absolutely  liable,  so  as  to  dispense 
with  a  writing,  if  it  appear  in  point  of  fact  that  the  third 
party  who  received  the  benefit  of  the  promise  was  liable  with 
him.3  It  is  material  to  know  to  whom  the  charge  is  made  on 
the  plaintiff's  books.  In  Matson  v.  Wharam,  and  Anderson 
v:  Hayman,  before  cited,  the  charge  was  made  to  the  third 
party,  and  this  circumstance  controlled  the  absolute  expres- 
sions used  by  the  defendants;  and  their  engagements  were 
held  collateral.4  And  in  like  manner  the  fact  of  the  bill 

1  Watkins  v.  Perkins,  1  Ld.  Raym.  224.     And  see  Skinner  p.  Conant, 
2  Vt,  453;  and  Bates  v.    Starr,  6  Ala.  697;  Brings  p.  Evans,  1   E.  D. 
Smith  (N.  Y.)  192;  Clement's  Appeal,  52  Conn.  464;  Wagner  v.  Hal- 
lack,  3  Col.  176.     In  Hartley  v.  Varner,  88  Til.  561,  the  promise  appears 
to  have  been  clearly  collateral,  although  held  otherwise. 

2  Jones  v.  Cooper,  1  Cowp.  227;  Matson  v.  Wharam,  2  T.  R.  80.    See 
also  Thwaits  v.  Curl,  6  B.  Mon.  (Ky.)  472;  Grant  v.  Wolf,  34  Minn.  32. 

8  Blake  v.  Parlin,  22  Me.  395;  Moses  v.  Norton,  36  Me.  113,  and  the 
cases  hereinafter  cited  on  this  subject.  But  see  Russell  ?>.  Babcock,  14 
Me.  138 ;  Benbow  v.  Soothsmith,  76  Iowa  151. 

4  See  also  Leland  v.  Creyon,  1  McCord  (S.  C.)  100;  Conolly  v.  Kettle- 
well,  1  Gill  (Md.)  260;  Dixon  v.  Frazee,  1  E.  D.  Smith  (N.  Y.)  32.  But 
evidence  that  the  charge  was  made  to  the  defendant  is  not  conclusive  that 
credit  was  given  to  him.  Swift  v.  Pierce,  13  Allen  (Mass.)  136;  Burk. 


CH.   X.]  GUARANTIES.  253 

being  presented  to  the  original  debtor  in  the  first  instance, 
if  unqualified  by  other  circumstances,  proves  the  credit  given 
to  him,  and  that  the  defendant's  promise  is  collateral  only.1 
But  it  is  material  to  remark  that,  though  the  debiting  of  the 
third  party  on  the  plaintiff's  books  or  the  presentation  of  the 
account  to  him  is  evidence  against  the  plaintiff  to  show  that 
he  gave  credit  to  the  third  party,  so  as  to  render  a  writing 
necessary  to  hold  the  defendant,  his  debiting  of,  or  present- 
ing the  account  to,  the  defendant  is  not  necessarily  evidence 
for  him  to  show  that  he  trusted  the  defendant  only,  while  in 
fact  the  goods  were  delivered  or  the  services  rendered  to  the 
third  party.2  The  delivery  to  the  third  party  is  not  conclu- 
sive against  the  plaintiff,  but  evidence  will  be  admitted  to 
show  that  it  was  done  by  mistake.3 

§  199.  But,  after  all,  it  is  impossible  to  specify  any  one 
fact  or  set  of  facts,  on  which  the  question  to  whom  the  plain- 
tiff gave  credit  is  to  be  determined.  In  the  language  of 
Buchanan,  C.  J.,  in  Elder  v.  Warfield,4  "the  extent  of  the 
undertaking,  the  expressions  used,  the  situation  of  the  par- 
ties, and  all  the  circumstances  of  the  case,  should  be  taken 
into  consideration."  In  Keate  v.  Temple,6  in  the  Common 

halter  v.  Farmer,  5  Kans.  477;  Myer  v.  Grafflin,  31  Md.  350;  Champion 
t>.  Doty,  31  Wise.  190;  Walker  v.  Hill,  119  Mass.  249;  Ruggles  r.  Gatton, 
50  111.  412;  Maynard  v.  Ponder,  75  Ga.  664;  Hake  v.  Solomon,  62  Mich. 
377  ;  Larson  v.  Jensen,  53  Mich.  427  ;  Winslow  v.  Dakota  Co.,  32  Minn. 
237;  Maurin  v.  Fogelberg,  37  Minn.  23;  Greene  v.  Burton,  59  Vt.  423. 
Nor  when  made  to  a  third  party,  that  credit  was  given  to  that  party. 
Lance  v.  Pearce.  101  Ind.  595. 

1  Larson  r.  Wyman,  14  Wend.  (N.  Y.)  246 ;  Pennell  v.  Pentz,  4  E.  D. 
Smith  (N.  Y.)  639. 

2  Poultney  t>.  Ross,  1  Dall.  (Pa.)  238;  Cutler  ».  Hinton,  6  Rand.  (Va.) 
509;  Kinloch  r.  Brown,  1  Rich.  (S.  C.)  Law  223;  Noyes  v.  Humphreys, 
11  Grat.  fVa.)  636;  Walker  ».  Richards,  41  N.  H.  388.     See  Eshleman 
v.  Harnish,  76  Pa.  St.  97;  Hardman  v   Bradley,  85  111.  162.     In  Scudder 
r.  Wade,  1  South.   (NT.  J.)  249,  the  jury  found  that  in  fact  the  whole 
credit  was  given  to  the  defendant. 

8  Loomis  v.  Smith,  17  Conn.  115. 

4  Elder  v.  Warfield,  7  Harr.  &  J.  (Md.)  397. 

5  Keate  v.  Temple,  1  Bos.  &  P.  158.     See,  further,   on  this  subject, 
Simpson  v.   Penton,  2  Cromp.  &  M.  430;  Payne  v.  Baldwin,  14  Barb. 


254  STATUTE   OF  FRAUDS.  [CH.   X. 

Pleas,  an  instructive  case  on  this  subject,  the  defendant  was 
a  lieutenant  in  the  navy,  and  said  to  a  slop-seller,  who  was 
to  supply  the  crew  with  clothes,  that  he  would  "  see  him  paid 
at  the  pay-table, "  and  afterwards,  that  he  would  "  see  him 
paid."  Among  other  circumstances  to  show  that  the  slop- 
seller  actually  relied  upon  the  power  of  the  defendant  to  stop 
the  money  out  of  the  men's  pay,  and  not  upon  his  personal 
liability,  the  court  laid  great  stress  upon  the  fact  that  the 
sum  claimed  was  very  large,  so  much  so  that  it  seemed  it 
never  could  have  been  contemplated  to  rely  entirely  for  it 
upon  the  personal  credit  of  a  lieutenant  in  the  navy,  who 
could  not  be  expected  to  be  responsible  for  so  large  an  amount. 
In  another  case  the  plaintiff,  a  builder,  who  had  done  some 
sewage  work  for  a  certain  board  of  health,  being  asked  by 
the  board's  surveyor  to  do  further  work  of  the  same  kind  for 
them,  said,  "  I  have  no  objection  to  do  the  work  if  you  or  the 
local  board  will  give  the  order,"  and  the  defendant  said,  "  You 
go  on  and  do  the  work  and  T  will  see  you  paid."  The  words 
used  imported  a  collateral  promise,  a  promise  to  pay  if  the 
board  did  not;  but  in  view  of  all  the  circumstances  of  the  case, 
including  the  fact  that  when  the  defendant  made  his  promise 
and  the  plaintiff  proceeded  to  act  upon  it,  it  was  not  known 
whether  the  third  party,  the  board,  would  ever  recognize  the 
bargain  and  become  itself  liable,  it  was  held  by  the  Exchequer 
Chamber  (reversing  the  Queen's  Bench)  and  by  the  House  of 
Lords  sustaining  the  reversal,  that  there  was  evidence  upon 
which  the  jury  might  find  that  the  credit  was  given  solely  to 
the  defendant,  so  as  to  make  his  promise  original,  and  not 
collateral.1  The  question  to  whom  the  credit  was  given  is 

(N.  Y.)  570;  Chase  v.  Day,  17  Johns.  (N.  Y.)  114;  Smith  v.  Hyde,  19 
Vt.  54;  Sinclair  v.  Richardson,  12  Vt.  33;  Hetfield  v.  Dow,  27  N.-J.  L. 
440;  Hazen  v.  Bearden,  4  Sneed  (Tenn.)  48;  Turton  v.  Burke,  4  Wise. 
119;  Prosser  v.  Allen,  Gow  117;  Billingsley  v.  Dempewolf,  11  Ind.  414; 
Blodgett  v.  Lowell,  33  Vt.  174;  Mountstephen  v.  Lakeman.  L.  R.  7Q.  B. 
196  ;  Warnick  v.  Grosholz,  3  Grant  (Pa.)  234 ;  Rossmann  v.  Bock,  97 
Mich.  431 ;  Hazeltine  v.  Wilson,  55  X.  J.  Law  2oO. 

1  Mountstephen  v.  Lakeman,  L.  R.  5  Q.  B  613;    L.  R.  7  Q.  B.  196; 


CH.    X.]  GUARANTIES.  255 

always  for  the  jury  to  determine,  upon  all  the  circumstances 
of  the  case.1 

§  199  a.  An  application  of  this  principle  may  be  seen  in  the 
cases  arising  upon  agreements  made  by  the  owners  of  build- 
ings going  up  under  contract,  upon  the  faith  of  which  sub- 
contractors or  others  have  continued  to  supply  labor  or 
materials  after  the  principal  contractor  has  become  either 
actually  or  probably  unable  to  pay.  In  these  cases  the 
question  is  the  same,  namely,  whether  the  services  for  which 
the  action  is  brought  were  performed  solely  upon  the  credit 
of  the  owner's  promise.2 

§  200.  Having  now  seen  what  kinds  of  obligations  on  the 
part  of  the  original  debtor  and  of  the  defendant  or  promisor, 
respectively,  the  statute  is  intended  to  affect,  and  also  that 
these  two  obligations  are  to  concur  in  order  to  bring  a  case 
within  it,  it  remains  to  be  considered,  in  the  last  place,  in 
what  cases  the  obligation  of  the  latter  is  not  within  the  stat- 
ute, though  it  concur  or  co-exist  with  that  of  the  original 
debtor.  Upon  this  by  far  the  most  intricate  division  of  this 
title,  it  is  found  to  be  impossible  to  lay  down  any  one  general 

Lakeman  v.  Mountstephen,  L.  R.  7  H.  L.  17.  See  Amort  ».  Christoffer- 
son,  59  N.  W.  Rep.  (Minn.)  304. 

1  Dean  v.  Tallman,  105  Mass.  443;    Glenn  v.  Lehnen,  54   Mo.   45; 
Cowdin  v.  Gottgetreu,  55  N.  Y.  650;  Lakeman  v.  Mountstephen,  L.  R. 
7  H.  L.  17;  Bloom  v.  McGrath,  53  Miss.  249;  Eshleman  r.  Harnish,  76 
Pa.   St.   97;  Moshier  v.   Kitchell,  87  Til.   18;  Pettit  v.   Braden,  55  Ind. 
201;  West  v.  O'Hara,  55  Wise.  645;  Ingersoll  v.  Baker,  41  Mich.  48; 
Bonnie  v.   Denniston,  41   Mich.    292;  Larson  v.  Jensen,  53  Mich.   427; 
Morris  v.  Osterhont,  55  Mich.  262;  McTighe  v.  Herman,  42  Ark.  285; 
Flournoy  v.  Wooten,  71   Ga.    168;  Reynolds  v.  Simpson,  74  Ga.  454; 
Heywood  r.  Stiles,  124  Mass.  275;  Barrett  v.  McHugh,  128  Mass.  165; 
Boston  i?.  Fan,  148  Pa.  St.  220;  Maddock  v.  Root,  72  Hnn  (N.  Y.)  98. 

2  Gill  v.  Herrick,   111  Mass.   501;    Walker  v.   Hill,  119  Mass.  249; 
Gifford  v.  Luhring,  69  111.  401 ;  Rawson  v.  Springsteen,  2  Thomp.  &  C. 
(N.  Y.)  416;  Belknap  r.   Bender,  75  N.  Y.  446;  Jefferson  County  r. 
Slagle,  66  Pa.  St.  202.     See  Eshleman  v.  Harnish,  76  Pa.  St.  97;  Haverly 
v.  Mercur,  78  Pa.    St.  257;  Weyand  v.  Critchfield,  3  Grant  (Pa.)  113; 
Lakeman  v.  Mountstephen,  L.  R.  7  H.  L.  17;  Bates  v.  Donnelly,  57  Mich. 
521 ;  Birchell  v.  Xeaster,  36  Ohio  St.  331  ;  Crawford  v.  Edison,  45  Ohio 
St.  239;  Merriman  v.  McManus,  102  Pa.  St.  102. 


256  STATUTE   OF   FRAUDS.  [CH.    X. 

rule  which  shall  comprehend  and  reconcile  all  the  decisions 
in  our  own  courts  and  those  of  England,  consistently  with 
what  is  believed  to  be  the  intent  and  policy  of  the  statute 
itself.  The  safest  course  to  be  pursued,  and  that  which  will 
probably  lead  in  the  end  to  the  soundest  conclusions  upon 
the  subject,  will  be  to  examine  some  of  the  leading  English 
cases,  ascertain  upon  what  principles  they  were  decided, 
and  how  far  the  existing  body  of  decisions  is  reconcilable 
therewith. 

§  200  a.  First,  there  is  a  class  of  cases  in  which  the  defend- 
ant or  promisor  has  or  is  about  to  acquire  an  interest  in 
property  which  has  been  or  may  be  subjected  to  a  lien  to 
secure  a  debt  owing  by  a  third  person.  If  the  defendant 
promises  to  discharge  the  debt,  thus  freeing  his  own  property 
or  interest  from  the  incumbrance,  his  promise  is  not  affected 
by  the  fact  that  the  third  party  was  also  liable  for  the  same 
debt,  but  is  regarded  as  original  and  independent,  — a  prom- 
ise to  pay  his  own  debt1 

§  201.  Another  class  of  cases  holds  that  if  the  defendant 
(meaning  the  party  who  makes  the  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another)  procures  the  sur- 
render, or  transfer  to  himself  from  the  creditor,  of  a  lien  or 
security  which  the  latter  holds  for  the  debt  owing  him,  the 
defendant's  promise,  made  in  consideration  of  such  surrender, 
or  transfer,  to  be  answerable  for  the  debt,  is  not  embraced  by 

1  Burr  v.  WSlcox,  13  Allen  (Mass.)  269 ;  Fish  v.  Thomas,  5  Gray 
(Mass.)  45;  Fitzgerald  v.  Dressier,  7  C.  B.  N.  s.  374;  Wills  v.  Brown,  118 
Mass.  137;  Young  v.  French,  35  Wise.  Ill;  Mitchell  v.  Griffin,  58  Tnd. 
559;  Weisel  ».  Spence,  59  Wise.  301;  Kelley  v.  Schupp,  60  Wise.  76; 
Hewett  v.  Currier,  63  Wise.  386;  Morrison  v.  Hogue,  49  Iowa  574;  Kelt 
p.  Smith,  74  Iowa  667;  Dunbar  r.  Smith,  66  Ala.  490;  Westmoreland 
v.  Porter,  75  Ala.  452;  Fears  r.  Story,  131  Mass.  47;  Joseph  v.  Smith, 
57  N.  W.  Rep.  (Neb.)  1012.  It  was  held  in  Rees  v.  Jutte,  153  Pa.  St. 
56.  that  when  the  defendant's  parol  promise  is  to  pay  a  debt  of  another 
composed  of  separate  and  independent  accounts,  some  of  which  are  liens 
on  the  defendant's  property  and  some  of  which  are  not,  it  is  valid  and 
enforceable  only  as  to  the  accounts  which  were  liens  when  the  promise  was 
made. 


CH.   X.]  GUAEANTIES.  257 

the  provisions  of  the  Statute  of  Frauds.  It  is  simply  a  pur- 
chase from  the  creditor  of  such  lien  or  security  for  a  price 
which  is  the  amount  of  the  original  debt.  The  leading  case 
to  this  effect  is  Castling  v.  Aubert,  decided  by  the  Court  of 
Queen's  Bench  in  1802. 

§  202.  The  plaintiff  as  insurance  broker  had  effected  vari- 
ous policies  of  insurance  for  one  Grayson,  and  was  under 
accommodation  acceptances  for  him,  and  had  a  lien  on  the 
policies  to  indemnify  himself  against  the  acceptances.  A 
loss  happened,  and  Grayson  needing  the  policies  to  present 
in  order  to  get  the  money,  the  plaintiff  was  applied  to,  to 
give  them  up  for  that  purpose  to  the  defendant,  who  was 
Grayson's  agent  at  that  time  for  the  management  of  his  in- 
surance affairs.  Some  of  the  acceptances  were  outstanding, 
particularly  one  for  X181  Is.,  on  which  Grayson  as  drawer 
and  the  plaintiff  as  acceptor  had  been  sued ;  and  the  defend- 
ant undertook  verbally,  in  consideration  of  the  policies  being 
made  over  to  him,  to  pay  that  particular  acceptance  and  the 
costs,  and  to  deposit  money  with  a  banker  for  the  satisfaction 
of  the  others  as  they  became  due.  The  plaintiff  delivered 
up  the  policies,  but  the  defendant  did  not  pay  the  acceptance 
or  costs.  Beside  the  special  count  upon  the  agreement,  the 
declaration  contained  a  count  for  money  had  and  received, 
upon  which,  as  Lord  Ellenborough  observed,  the  plaintiff  was 
entitled  to  recover,  as  the  defendant  had  received  a  much 
larger  amount  from  the  underwriters.  But  after  recapitulat- 
ing the  facts,  and  without  reference  to  the  common  count,  his 
Lordship  remarked  that  in  entering  into  the  agreement  the 
defendant  "had  not  the  discharge  of  Grayson  principally  in 
his  contemplation,  but  the  discharge  of  himself.  That  was 
his  moving  consideration,  though  the  discharge  of  Grayson 
would  eventually  follow.  It  is  rather,  therefore,  a  purchase 
of  the  securities  which  the  plaintiff  held  in  his  hands.  This 
is  quite  beside  the  mischief  provided  against  by  the  statute; 
which  was  that  persons  should  not  by  their  own  un vouched 
undertaking  without  writing  charge  themselves  for  the  debt, 

17 


258  STATUTE   OF  FRAUDS.  [CH.    X. 

default,  or  miscarriage  of  another."     And  the  plaintiff  had 
judgment. l 

§  203.  It  is  to  be  carefully  noted  that  in  this  case  the  very 
lien  or  security  which  the  creditor  held  was  procured  by  the 
defendant  for  his  own  use,  and  it  is  thus  that  the  transaction 
acquires  the  character  attributed  to  it  by  the  court  of  a  sale 
by  one  party  and  a  purchase  by  the  other.  The  circumstance 
that  the  payment  of  the  price  by  the  latter  is  to  take  the  form 
of  discharging  the  debt  of  another  person  is  treated  by  the 
court  as  merely  incidental,  and  as  not  depriving  the  arrange- 
ment of  its  other  and  primary  and  essential  character.  The 
true  meaning  of  this  decision  is  well  illustrated  by  reference 
to  a  late  case  in  the  Court  of  Exchequer,  where  it  was 
attempted  to  be  applied.  The  facts  substantially  were  that 
the  plaintiff  had  been  employed,  by  a  then  part-owner  of  the 
ship  "  Mathesis, "  to  procure  a  charter  for  the  vessel  under  an 
agreement  that,  in  consideration  of  his  paying  a  certain  sum 
due  from  the  ship  for  repairs,  he  should  have  a  lien  upon 

1  Castling  v.  Aubert,  2  East  325.  The  case  of  Walker  v.  Taylor, 
decided  by  Chief  Justice  Tindal  at  nisi  priux  in  1834,  presents  a  state  of 
facts  precisely  analogous  to  those  in  the  principal  case,  and  upon  that 
ground  was  rightly  decided.  6  Car.  &  P.  752.  And  see  Fitzgerald  ». 
Dressier,  5  C.  B.  x.  s.  885.  The  following  are  some  of  the  American 
cases  which  seem  to  be  in  accordance  with  the  principle  of  Castling 
v.  Aubert.  Allen  v.  Thompson,  10  X.  H.  32.  Here  the  plaintiff  had 
obtained  the  account-book  of  his  debtor  as  a  pledge  to  secure  the  debt, 
and  the  defendant,  in  consideration  that  the  plaintiff  would  deliver  up 
the  book  to  one  B.  to  collect  the  demands,  verbally  promised  the  plaintiff 
to  pay  him  the  amount  due  from  the  debtor  if  B.  should  not  collect 
enough  for  that  purpose;  the  court  holding  that  the  delivery  of  the  book 
to  B  on  the  defendant's  request  was  in  effect  the  same  as  a  delivery  to 
the  defendant  himself.  Also  Gardiner  r.  Hopkins,  5  Wend.  (X.  Y.)  23; 
French  «>.  Thompson,  6  Vt.  54;  Olmstead  v.  Greenly,  18  Johns.  (N.  Y.) 
12;  Hindman  v.  Langford,  3  Strobh.  (S.  C.)  Law  207;  and  Wolff  r. 
Koppel,  5  Hill  (X.  Y.)  458,  where  the  rule  was  applied  (perhaps  unne- 
cessarily) to  the  case  of  a  factor  guaranteeing  his  sales  under  a  del  credere 
commission .  A  promise  by  the  purchaser  of  personal  property  subject  to 
mortgage  to  pay  the  mortgage  note,  the  mortgagor  continuing  liable 
notwithstanding  the  promise,  is  within  the  statute,  and  must  be  in  writ- 
ing. Doolittle  r.  Xaylor,  2  Bosw.  (N.  Y.)  206. 


CH.   X.]  GUARANTIES.  259 

her  certificate  of  register,  and  should  collect  and  receive  the 
freight.  The  "  M athesis  "  made  her  voyage  and  returned  to 
England,  and  it  turning  out  that  there  was  difficulty  in  effect- 
ing a  settlement  between  various  parties  having  various  in- 
terests in  or  claims  upon  the  ship,  they  all,  including  the 
plaintiff,  executed  a  writing  by  which,  among  other  things, 
the  defendants  agreed  to  pay  the  plaintiff  his  commissions  on 
the  charter-party  when  ascertained,  and  all  together  agreed 
that  no  person  signing  the  agreement  should  put  or  cause  to 
be  put  any  stop  on  the  freight,  and  that,  if  such  stop  was  put 
on,  the  defendants  undertook  to  have  the  same  removed. 
This  was  the  writing  produced  in  evidence,  and  in  regard  to 
which  the  defendants  contended  that  it  purported  to  be  an 
agreement  to  answer  for  the  debt,  default,  or  miscarriage  of 
another,  within  the  Statute  of  Frauds,  and  did  not  disclose 
upon  the  face  of  it  any  consideration  moving  from  the  plain- 
tiff, and  was  therefore  nudum  pactum.  They  contended  also 
that  there  was  a  variance  between  it  and  the  declaration, 
which  set  forth  the  plaintiff's  lien,  and  that  the  defendants 
were  the  brokers  for  parties  who  during  the  voyage  had 
become  owners  of  the  ship,  and  that  it  became  desirable  for 
them  to  obtain  immediate  possession  of  the  ship,  and  they 
were  therefore  anxious  that  the  plaintiff  should  abandon  his 
right  of  receiving  the  freight,  and  that,  in  consideration  of 
the  premises,  and  that  the  plaintiff  would  relinquish  his 
right  to  collect  the  freight,  the  defendants  promised  and 
agreed  to  pay  him  his  commission;  that  the  plaintiff  did 
relinquish  his  right  of  collecting  the  freight,  but  that  the 
defendants  would  not  pay  him  his  commission:  allegations 
evidently  framed  to  bring  the  case  within  the  rule  in  Castling 
v.  Aubcrt.  The  court,  however,  held  there  was  a  variance, 
and  that  the  contract  proved  was  within  the  Statute  of  Frauds ; 
Pollock,  C.  B.,  saying:  "It  is  not  an  agreement  by  the 
defendants  to  pay,  in  consideration  of  the  plaintiff  abandon- 
ing his  rights,  .  .  .  but  ...  in  consideration  of  his  not 
asserting  any  lien  upon  the  freight,  without  regard  to  the 


260  STATUTE   OF  FRAUDS.  [CH.   X. 

question  whether  he  was  or  was  not  entitled  to  such  lien."  l 
In  another  and  later  case,  where  the  discontinuance  of  a  suit 
was  the  consideration  of  the  defendant's  promise,  and  it  was 
contended  that  the  statute  did  not  apply,  because  a  new  con- 
sideration moved  between  the  parties  to  the  guaranty,  the 
Court  of  Queen's  Bench  held  otherwise,  Patteson,  J.,  re- 
marking that  the  cases  on  that  point  had  "  been  where  some- 
thing has  been  given  up  by  the  plaintiff  and  acquired  by  the 
party  making  the  promise ;  as  the  security  of  goods  for  a 
debt."2 

§  204.  The  Supreme  Court  of  Massachusetts  has  very 
clearly  announced  the  same  doctrine  in  these  cases  where  the 
promise  is  made  in  consideration  of  the  relinquishment  of  a 
lien.  It  says  that  it  is  not  enough  "that  the  plaintiff  has  re- 
linquished an  advantage,  or  given  up  a  lien,  in  consequence 
of  the  defendant's  promise,  if  that  advantage  had  not  also 
directly  enured  to  the  benefit  of  the  defendant,  so  as  in  effect 
to  make  it  a  purchase  by  the  defendant  of  the  plaintiff.  .  .  . 
Where  the  plaintiff,  in  consideration  of  the  promise,  has  re- 
linquished some  lien,  benefit,  or  advantage  for  securing  or 

1  Gull  v.   Lindsay,  4  Exch.  51.     The  same  court,  a  year  later,  apply 
Castling  v.  Aubert  to  the  case  of  a  verbal  agreement  that  a  judgment  pre- 
viously obtained  against  the  defendant  as  surety  on  certain  old  obliga- 
tions of  a  third  person  should  stand  as  collateral  security  for  certain  new 
obligations  of  that  person.     Macrory  v.  Scott,  5  Exch.  907.     Parke,  B., 
speaks  of  the  judgment  as  a  fund  which  is  only  to  be  appropriated  in  a 
different  way,  and  considers  that  the  case  falls  within  the  principle  of  the 
decision  in  Castling  v.  Aubert.     It  would  seem,  however,  that  if  the  judg- 
ment was  already  binding  on  the  defendant,  and  the  effect  of  his  promise 
was  only  to  apply  the  amount  to  a  different  account  of  the  same  party, 
it  is  better  to  let  the  case  stand,  on  the  ground  that  in  reality  no  new 
obligation  is  imposed  upon  the  defendant,  than  to  strain  unnecessarily 
so  plain  a  decision  as  that  referred  to. 

2  Tomlinson  v.  Gell  (not  Gill),  6  Ad.  &  E.  571.     See  also  Chater  v. 
Beckett,  7  T.  R.  201,  where  the  plaintiff  gave  up  a  ca.  sa.;  but  still  the 
defendant's  promise  was  held  bad  by  the  statute.     Dillaby  v.  Wilcox,  60 
Ct.  71;  Warner  ».  Willoughby,  60  Ct.  468;  Bray  v.  Parcher,  80  Wise. 
16.     But  see  Muller  v.   Riviere,   59  Texas  640,  where    forbearance  to 
enforce  a  lien  on  goods  was  the  consideration  for  the  promise  of  the  de- 
fendant who  manages  the  goods  to  pay  the  third  person's  debt. 


CH.   X.]  GUARANTIES.  261 

recovering  his  debt,  and  where  by  means  of  such  relinquish- 
ment  the  same  interest  or  advantage  has  enured  to  the  benefit 
of  the  defendant,"  there  his  promise  is  binding  without  writ- 
ing. "  In  such  cases,  although  the  result  is,  that  the  pay- 
ment of  the  debt  of  the  third  person  is  effected,  it  is  so 
incidentally  and  indirectly,  and  the  substance  of  the  contract 
is  the  purchase,  by  the  defendant  of  the  plaintiff,  of  the  lien, 
right,  or  benefit  in  question. "  1 

§  205.  The  case  of  Houlditch  v.  Milne,  decided  by  Lord 

1  Per  Shaw,  C.  J.,  in  Curtis  v.  Brown,  5  Gush.  491.  And  see  Nelson 
v.  Boynton,  3  Met.  (Mass.)  390;  Alger  v.  Scoville,  1  Gray  (Mass.)  398; 
Fish  v.  Thomas,  5  Gray  (Mass  )  45;  Dexter  v.  Blauchard,  11  Allen 
(Mass.)  365;  Burr  v.  Wilcox,  13  Allen  (Mass.)  269;  Ames  v.  Foster,  106 
Mass.  400 ;  Brightman  v.  Hicks,  108  Mass.  246 ;  Richardson  v.  .Robbins, 
124  Mass.  105;  Smith  v.  Say  ward,  5  Greenl.  (Me.)  504;  Boyce  v.  Owens, 
2  McCord  (S.  U.)  Law  208 ;  Scott  v.  Thomas,  1  Scam.  (111.)  58 ;  Scott 
v.  White,  71  111.  287;  Stern  v.  Drinker,  2  E.  D.  Smith  (N.  Y.)  401;  Van 
Slyck  v.  Pulver,  Hill  &  D.  (N.  Y.)  47;  Fay  v.  Bell,  Hill  &  D.  (N.  Y.) 
251;  Mallory  v.  Gillett,  23  Barb.  (N.  Y.)  610;  Spooner  v.  Drum,  7  Ind. 
81  ;  Luark  v.  Malone,  34  Ind.  444;  Conradtu.  Sullivan,  45  Ind.  180;  Craw- 
ford v.  King,  54  Ind.  6;  Krutz  v.  Stewart,  54  Ind.  178;  Lampson  v. 
Hobart,  28  Vt  697;  Cross  v.  Richardson,  30  Vt.  641.  See  Stewart  v. 
Campbell,  58  Me.  439;  Hodgins  v.  Heaney,  15  Minn.  185;  Young  v. 
French,  35  Wise.  Ill;  Muller  v.  Riviere,  59  Texas  640;  Waterman  v. 
Rossiter,  45  111.  App.  155.  The  case  of  Kiugv.  Despard,  5  Wend.  (N.  Y.) 
277,  the  facts  of  which  are  very  similar  to  those  in  Curtis  v.  Brown,  is 
perhaps  determinable  upon  the  ground  that  the  claim  against  the  origi- 
nal debtor  was  actually  abandoned.  See  also,  in  support  of  the  text, 
Corkins  v.  Collins,  16  Mich.  478;  Arnold  v.  Stedman,  45  Pa.  St.  186; 
Clapp  v.  Webb,  52  Wise.  638;  Gray  ».  Herman,  75  Wise.  453;  Vaughn  v. 
Smith,  65  Iowa  579  ;  Fisher  v.  Wilmoth,  68  Ind.  449 ;  Stewart  v.  Jerome, 
71  Mich.  201;  Borchsenius  v.  Canutson,  100  111.  82;  Prime  v.  Koehler, 
77  N.  Y.  91;  Prout  v.  Webb,  87  Ala.  593;  Williamson  r.  Hill,  3 
Mackey  (D.  of  C.)  100;  Rogers  v.  Empkie  Hardware  Co.,  24  Neb.  653; 
French  v.  French,  84  Iowa  655;  Parker  v.  Dillingham,  129  Ind.  542; 
Scudder  v.  Carter,  43  111.  App.  Ct.  252;  Lyons  «.  Daugherty,  26  S.  W. 
Rep.  (Tex.)  146.  Contra,  Shook  r.  Vanmater,  22  Wise.  532.  Where  a 
distinct  consideration  passes  between  the  parties  to  a  guaranty  contract, 
it  is  without  the  statute.  Graves  v.  Shulman,  59  Ala.  406.  The  neces- 
sity of  the  claim  relinquished  enuring  to  the  benefit  of  the  promisor 
seems  to  have  been  overlooked  in  Power  v.  Rankin,  114  111.  52;  but  the 
case  was  rightly  decided,  the  promisor  having  funds  of  the  debtor  in  his 
hands.  See  supra,  §  187. 


262  STATUTE   OF  FRAUDS.  [CH.   X. 

Eldon  at  nisi  prius  prior  to  Castling  v.  Aubert,  seerns  to 
stand  by  itself  in  English  law,  so  far  as  it  holds  that  the 
mere  relinquishinent  of  a  lien  by  tho  creditor,  whether  it 
enures  to  the  defendant  or  not,  is  sufficient  to  take  the 
promise  of  the  latter,  made  in  consideration  of  such  relin- 
quishinent,  out  of  the  statute.  In  that  case,  certain  car- 
riages belonging  to  one  Copey  had  been  sent  by  the  defendant 
to  the  plaintiffs  to  be  repaired,  and  the  defendant  gave  the 
orders  concerning  them.  The  bill  was  made  out  to  Copey 
when  the  repairs  were  finished;  but  the  order  came  from 
the  defendant  to  pack  them  up  and  send  them  on  board  ship, 
and  about  the  same  time  a  verbal  statement  from  him  that 
he  would  pay  for  them.  Upon  the  receipt  of  that  engage- 
ment, the  carriages  were  packed  and  shipped  accordingly. 
It  was  in  evidence  also  that  afterwards,  when  the  bill  was 
presented  to  the  defendant,  he  said  he  had  the  money  to  pay 
it,  though  he  did  not  say  whether  it  was  his  own  or  Copey's. 
Lord  Eldon  said,  if  a  person  had  obtained  possession  of 
goods  on  which  a  landlord  had  a  right  to  distrain  for  rent, 
and  he  promised  to  pay  the  rent,  though  it  was  clearly  the 
debt  of  another,  yet  a  note  in  writing  was  not  necessary,  and 
that  such  a  case  appeared  to  apply  precisely  to  the  one  before 
him.  The  plaintiffs  had  to  a  certain  extent  a  lien  upon  the 
carriages,  which  they  parted  with  on  the  faith  of  the  defend- 
ant's promise  to  pay,  and  it  was  held  that  for  that  reason  the 
case  was  out  of  the  statute.1  From  the  circumstance  that 
the  goods  in  question  passed  into  the  hands  of  the  defendant 
when  the  lien  was  relinquished,  it  might  be  inferred  that  it 
enured  to  his  benefit.2  But  in  several  of  the  American 

1  Houlditch  v.  Milne,  3  Esp.  86.     If,  as  is  intimated  in  the  report,  the 
defendant  in  this  case  had  money  of  thp  principal  debtor  in  his  hands  to 
pay  the  debt  with,  there  would  be  no  difficulty  in  the  decision.     It  would 
be  a  mere  case  of  trust,  and  of  course  not  within  the  statute.     See  ante, 
and   compare   Williams   v.    Leper,  cited   in   the   following  section.     In 
Bushell  r.  Beavan,  1  Bing.  X.  C.  103.  there  is  an  intimation  of  the  court 
to  a  similar  effect  with  Houlditch  r.  Milne,  but  it  was  unnecessary  to  the 
case,  which  was  in  point  of  fact  determined  on  another  ground. 

2  This  was  the  case  in  Tindal  v.  Touchberry,  3  Strobh.  (S.  C.)  Law 


CH.   X.]  GUARANTIES.  263 

States,  more  particularly  in  South  Carolina,  it  has  been 
broadly  decided  that  the  mere  reliuquishment  of  the  lien  by 
the  plaintiffs  was  sufficient  to  take  the  defendant's  promise 
out  of  the  statute.1  In  Tennessee  the  same  doctrine  has 
been  urged,  but  the  court  declined  to  express  an  opinion,  and 
determined  the  case  upon  another  ground.2 

§  206.  But  it  is  obvious  that  Houlditch  v.  Milne  was 
decided  upon  the  supposed  application  of  Williams  v.  Leper, 
a  very  conspicuous  case  upon  this  branch  of  the  subject,  and 
one  which  must  now  be  examined,  both  as  affording  a  test  of 
the  correctness  of  the  first-mentioned  decision,  and  as  intro- 
ducing us  to  another  and  most  comprehensive  class  of  cases. 
It  will  appear  that  the  doctrine  alluded  to  in  the  last  section 
finds  no  support  whatever  in  that  case,  when  closely  exam- 
ined and  rightly  understood.  The  facts  were  that  one  Tay- 
lor, who  was  tenant  to  the  plaintiff,  being  three-quarters 
of  a  year  (or  forty-five  pounds)  in  arrear  for  rent,  and  insol- 
vent, conveyed  all  his  effects  for  the  benefit  of  his  creditors. 
They  employed  Leper,  the  defendant,  as  a  broker,  to  sell  the 
effects,  and  he  advertised  a  sale  of  them  accordingly.  On 
the  morning  advertised  for  the  sale,  Williams,  the  landlord, 
came  to  distrain  the  goods  in  the  house.  Leper,  having 
notice  of  the  landlord's  intention  to  distrain  them,  promised 
to  pay  the  arrear  of  rent  if  he  would  desist  from  distrain- 

177.  In  1  Wms.  Saund.  211  6,  a  note  to  Forth  v.  Stanton,  it  is  suggested 
that  Houlditch  v.  Milne  may  be  reconciled  with  the  other  cases,  because 
it  appears  upon  all  the  circumstances  of  the  case  that  the  sole  credit  was 
given  to  the  defendant,  and  that  the  real  owner  of  the  carriages  was  not 
at  all  liable ;  on  which  ground  the  case  would  clearly  be  not  within  the 
statute. 

1  See  Mercein  v.  Andrus,  10  Wend.  (N.  Y.)  461,  which,  however,  was 
actually  determined  upon  a  different  question  unconnected  with  the  stat- 
ute.   Also  Slingerland  v.  Morse,  7  Johns.  (N.  Y.)  463;  Stewart  r.  Hinkle, 
1  Bond  (C.  C.)  506;  and  the  following  South  Carolina  cases:  Adkinson 
v.  Barfield,  1  McCord,  Law   575 ;  Siau  v.  Pigott,  1  Nott  &  McC.  124; 
Dunlap  v.  Thome,  1  Rich.   Law  213 ;  Whitehurst  ».  Hyman,  90  N.  C. 
487. 

2  Handle  v.  Harris,  6  Yerg.  508. 


264  STATUTE   OF   FRAUDS.  [CH.    X. 

ing ;  and  he  did  thereupon  desist.  All  the  judges  agreed  that 
Leper's  promise  was  not  within  the  Statute  of  Frauds ;  and, 
although  there  are  some  differences  in  the  language  of  their 
reported  opinions,  the  ground  of  their  decision  appears  to  be 
sufficiently  clear.  The  Chief  Justice,  Lord  Mansfield,  said : 
"  The  res  gesta  would  entitle  the  plaintiff  to  his  action  against 
the  defendant.  The  landlord  had  a  legal  pledge.  He  enters, 
to  distrain :  he  has  the  pledge  in  his  custody.  The  defend- 
ant agrees  'that  the  goods  shall  he  sold,  and  the  plaintiff  paid 
in  the  first  place.'  The  goods  are  the  fund  :  the  question  is 
not  between  Taylor  and  the  plaintiff.  The  plaintiff  had  a 
lien  upon  the  goods.  Leper  was  a  trustee  for  all  the  credi- 
tors ;  and  was  obliged  to  pay  the  landlord,  who  had  the  prior 
lien.  This  has  nothing  to  do  with  the  Statute  of  Frauds.  It 
is  rather  a  fraud  in  the  defendant  to  detain  the  £45  from 
the  plaintiff,  who  had  an  original  lien  upon  the  goods. "  Mr. 
Justice  Aston  said  he  looked  upon  the  goods  as  the  debtor, 
as  a  fund  between  both,  and  he  thought  that  Leper  was  not 
bound  to  pay  the  landlord  more  than  the  goods  sold  for,  in 
case  they  had  not  sold  for  £45.  Mr.  Justice  Wilmot  said, 
"Leper  became  the  bailiff  of  the  landlord:  and  when  he  had 
sold  the  goods  the  money  was  the  landlord's  (as  far  as  £45) 
in  his  own  bailiff's  hands.  Therefore  an  action  would  have 
lain  against  Leper  for  money  had  and  received  to  the  plain- 
tiff's use."  And  in  this  view  Mr.  Justice  Yates  concurred.1 
Now  the  promise  of  Leper  was  in  terms,  it  is  true,  to  pay  the 
debt  in  consideration  of  the  surrender  of  the  landlord's  lien, 
and  it  was  argued  that  he  promised  absolutely  to  pay  it,  and 
not  to  pay  it  out  of  the  goods,  or  with  any  other  restriction. 
But  it  is  clear,  in  the  first  place,  that  it  was  not  simply 
because  the  landlord  surrendered  his  lien  (which,  being  a 

i  Williams  v.  Leper,  3  Burr.  1886.  In  the  report  of  the  case  in  2 
Wilson  308,  it  is  said  that  Taylor,  the  tenant,  had  made  a  bill  of  sale  to 
Leper  as  trustee  for  the  creditors.  See  Clark  v.  Hall,  6  Halst.  (X.  J.) 
78;  Alger  v.  Scoville,  1  Gray  (Mass.)  391;  Woodward  v.  Wilcox,  27 
Ind.  207 ;  Stoudt  v.  Hine,  45  Pa.  St.  30.  See  ante,  §  187. 


CH.   X.]  GUARANTIES.  265 

damage  to  him,  was  a  special  consideration  moving  from  him 
and  supporting  the  defendant's  promise)  that  such  promise 
was  held  good;  and  hence  Houlditch  v.  Milne,  which  depends 
upon  this  notion,  cannot,  to  any  such  extent,  be  sustained. 
And  in  the  second  place,  it  is  clear  that  the  decision  did  not 
proceed  upon  the  mere  ground  that  Leper  had  acquired  the 
lien  which  the  landlord  had  lost,  so  as  to  make  him  person- 
ally a  purchaser  of  that  lien  for  a  certain  value,  to  wit,  the 
amount  of  the  debt  he  undertook  to  pay ;  for  he  was  considered 
by  all  the  judges  as  the  mere  trustee  of  the  creditors  whom 
he  represented,  and  not  as  a  purchaser  of  the  lien  for  his  own 
benefit ;  and  hence  the  case  is  to  be  distinguished  from  that 
of  Castling  v.  Aubert,  which  was  merely  and  purely  a  sale  of 
the  security.1  The  judges  really  treat  it,  not  as  a  promise  to 
pay  the  debt  in  consideration  of  the  forbearance  to  distrain 
(which  is  the  manner  in  which  it  is  presented  upon  the  state- 
ment of  facts),  but  as  a  transaction  by  which  certain  goods 
were  intrusted  out  of  the  landlord's  constructive  possession 
and  put  in  Leper's  hands,  for  the  purpose  of  his  converting 
them  into  money  wherewith  to  pay,  among  other  debts,  that 
due  to  the  landlord.  It  was  a  mere  case  of  agency  or  trust. 
The  goods  were  the  fund  in  regard  to  which  it  was  to  be  exer- 
cised. As  Mr.  Justice  Wilmot  said,  Leper  became  the  bailiff 
of  the  landlord;  and  it  is  most  worthy  of  notice  that  the 
court  seem  to  agree  that,  if  the  goods  had  not  sold  for  more 
than  the  landlord's  debt,  Leper  would  not  have  been  liable 
beyond  the  proceeds  of  the  sale.  The  result  is  that  Leper's 
obligation  hardly  arose  out  of  his  special  promise  at  all.  The 
res  gesta  would  have  entitled  the  landlord  to  his  action 
against  him,  as  Lord  Mansfield  expressly  says.2 

1  Both  these  points  are  well  illustrated  in  the  similar  case  of  Edwards 
t>.  Kelly  (see  post,  §  208),  where  the  argument  was  that,  as  no  considera- 
tion moved  to  the  defendant,  and  as  the  defendant  had  no  personal  interest 
in  the  transaction,  Williams  v.  Leper  did  not  apply;  but,  notwithstand- 
ing those  facts,  the  court  held  it  did  apply  because  of  another  and  the 
true  point  in  that  case. 

2  This  view  of  such  transactions,  where  the  property  of  the  debtor  is 


266  STATUTE   OF   FRAUDS.  [CH.   X. 

§  207.  It  is  deemed  well  worth  while  to  have  analyzed  this 
decision,  because  out  of  a  misunderstanding  of  it  has  grown 
a  doctrine,  which  seems  to  make  a  dead  letter  of  the  Statute 
of  Frauds  in  many  cases  of  promises  to  pay  the  pre-existing 
debt  of  another;  namely,  that  any  new  consideration,  dis- 
tinct from  the  debt  and  moving  between  the  parties  to  the 
guaranty,  will  take  it  out  of  the  statute. 

§  208.  In  a  case  in  the  Queen's  Bench,  the  facts  were 
almost  identical  with  those  in  Williams  v.  Leper,  and  the 
correct  view  of  that  decision  well  enforced  and  illustrated. 
A  third  party  owed  the  plaintiff  for  rent,  and  the  plaintiff 
distrained  upon  the  premises,  cattle,  goods,  and  chattels,  of 
greater  amount  than  the  rent  in  arrear,  and  the  same  were 
about  to  be  sold  to  satisfy  his  claim;  whereupon  it  was 
agreed  between  him  and  the  defendants  that  he  should  deliver 
up  the  distress  and  permit  the  goods  to  be  sold  by  one  of 
them  for  the  tenant,  upon  their  joint  undertaking  to  pay  the 
plaintiff  the  rent  due.  That  undertaking  was  held  binding. 
Lord  Ellenborough,  C.  J.,  said:  "Perhaps  this  case  might 
be  distinguishable  from  that  of  Williams  v.  Leper,  if  the 
goods  distrained  had  not  been  delivered  up  to  the  defend- 
ants. But  here  was  a  delivery  to  them  in  trust,  in  effect,  to 
raise  by  sale  of  the  goods  sufficient  to  satisfy  the  plaintiff's 
demand ;  the  goods  were  put  into  their  possession  subject  to 
this  trust."1  All  the  judges  concurred  in  the  opinion  that 
Williams  v.  Leper  was  decisive  of  the  case.  Afterwards, 
that  decision  was  recognized  and  applied  in  the  Common 
Pleas.  The  defendant,  an  auctioneer,  was  employed  by  third 
parties  to  sell  certain  goods  on  the  premises,  and  the  plain- 
tiff's agent  applied  to  him  for  rent  due  to  the  plaintiff,  say- 
placed  in  the  hands  of  the  defendant,  as  his  agent,  or  trustee,  is  clearly 
set  forth  in  Belknap  v.  Bender,  75  N.  Y.  446 ;  Ackley  v.  Parmenter,  98 
N.  Y.  425. 

i  Edwards  v.  Kelly,  6  Maule  &  S.  208.  Note  the  suggestion  of  Bay- 
ley,  J.,  in  which  Holroyd,  J.,  concurred,  that  making  the  distress  sus- 
pended the  debt,  and  that  consequently  when  the  promise  was  made  there 
was  no  debt  to  which  it  was  collateral. 


CH.    X.]  GUARANTIES.  267 

ing  "  it  was  much  better  so  to  apply  than  to  put  in  a  distress 
and  stop  the  sale,"  when  the  defendant,  after  inquiring  the 
amount,  said,  "Madam,  you  shall  be  paid;  my  clerk  shall 
bring  you  the  money."  The  court  were  all  clearly  of  opinion 
that  the  case  was  not  distinguishable  from  Williams  v.  Leper, 
and  refused  to  set  aside  a  verdict  for  the  plaintiff.1 

§  209.  It  seems,  therefore,  that  the  English  courts  have 
clearly  apprehended  the  force  of  Williams  v.  Leper  as  embra- 
cing mere  cases  of  a  trust  assumed  by  the  defendant  in  regard 
to  property  in  the  hands  or  under  the  control  of  the  plaintiff, 
and  in  which  the  discharge  of  the  third  person's  debt  was 
merely  incidental  to  the  execution  of  that  trust.  It  does  not 
decide,  any  more  than  Castling  v.  Aubert  decides,  that  the 
mere  relinquishing  by  the  plaintiff  of  his  hold  upon  the  prop- 
erty is,  as  being  "  a  new  consideration  moving  between  the 
immediate  parties  to  the  guaranty,"  a  circumstance  sufficient 
to  take  the  promise  of  the  defendant  out  of  the  statute.  In 
the  case  of  Slingerland  v.  Morse,  in  New  York,  the  declara- 
tion stated  that  the  defendants,  in  consideration  that  the 
plaintiff  had  delivered  to  them  certain  articles,  undertook  and 
promised  by  their  agreement  in  writing  (which,  however,  as 
it  did  not  express  any  consideration,  was  inefficient  as  a 
memorandum)  to  deliver  the  same  articles  to  the  plaintiff  on 
demand  or  pay  $450.  The  proof  was  that  one  Buys  was  duly 
authorized  by  the  plaintiff  to  distrain  for  rent  to  that  amount 
due  to  the  latter  from  his  tenant,  and  that  the  articles  men- 
tioned in  the  declaration  were  duly  distrained,  of  which 
notice  was  given  to  the  tenant,  accompanied  with  an  inven- 
tory of  the  articles  distrained,  but  the  goods  were  not  re- 
moved ;  and  that  the  defendants,  at  the  request  of  the  tenant, 
signed  an  agreement  indorsed  upon  the  inventory  of  the 
goods,  as  follows:  "We  do  hereby  promise  to  deliver  to 
Peter  Slingerland  all  the  goods  and  chattels  contained  in  the 
within  inventory,  in  six  days  after  demand,  or  pay  the  said 
Peter  $450."  Buys  thereupon  suspended  the  sale  of  the 
1  Bampton  v.  Paulin,  4  Bing.  264. 


268  STATUTE   OF  FRAUDS.  [CH.   X. 

goods  and  left  them  in  the  house  of  the  tenant.  The  court 
below  considered  this  to  be  a  mere  collateral  undertaking, 
but  on  motion  for  a  new  trial  the  Supreme  Court  held  the 
case  of  Williams  v.  Leper  to  be  in  point,  and  granted  the 
motion.1  But  it  is  obvious  that  the  distinguishing  feature 
of  that  case  escaped  the  court;  inasmuch  as  the  proof  before 
them  did  not  show  that  the  defendants  were  to  do  anything 
with  the  goods  towards  paying  the  debt;  their  agreement 
being,  in  substance,  that  the  distress  should  be  simply  for- 
borne for  six  days,  at  the  end  of  which  time  the  goods  should 
be  delivered  up  or  the  money  paid.  The  doctrine  in  Wil- 
liams v.  Leper,  however,  may  be  rightly  applied,  as  it  has 
been  in  South  Carolina,  to  cases  where  the  plaintiff  simply 
suspends  an  execution  upon  goods  of  the  debtor,  in  considera- 
tion of  the  promise  of  the  defendant  to  apply  the  proceeds  of 
the  goods  to  the  satisfaction  of  the  execution;2  or  where  the 
defendant  simply  holds  the  goods  from  the  original  debtor 
for  the  purpose  of  paying  the  debt,  and  promises  to  pay  it,  if 
the  creditor  will  postpone  his  attachment.3  In  such  cases, 
the  remark  of  Mr.  Justice  Bayley  perfectly  applies ;  the  sub- 
stance of  the  contract  "  is  as  if  the  defendants  had  proposed 
to  the  plaintiff  in  these  words :  You  must  convert  the  goods 
into  money  in  order  to  satisfy  yourself  the  arrears  due,  if 
you  will  allow  us  to  do  this  we  will  pay  you."4 

§  210.  The  next  of  the  leading  English  cases  to  which  it  is 
deemed  necessary  to  call  particular  attention,  in  connection 
with  this  branch  of  the  subject,  is  one  which  establishes  a 
principle  entirely  distinct  from  any  of  those  which  have  been 
before  examined,  though  it  has  been  strangely  confounded 
with  them.  The  principle  is,  that  where  the  transaction 
between  the  parties  is  in  its  nature  a  purchase  of  the  debt 
itself,  the  defendant's  promise  to  pay  the  whole  or  any  part 

1  Slingerland  v.  Morse,  7  Johns.  463. 

2  Rogers  v.  Collier,  2  Bailey  581. 

8  McCray  v.  Madden,  1  McCord,  Law  486. 
4  Edwards  v.  Kelly,  6  Maule  &.  S.  209. 


CH.   X.]  GUARANTIES.  269 

of  the  amount  to  the  original  creditor,  as  the  consideration 
of  the  purchase,  is  not  affected  by  the  statute.  The  case 
referred  to  is  that  of  Anstey  v.  Marden  in  the  Common  Pleas, 
where  the  facts  were  briefly  as  follows :  The  defendant  being 
insolvent,  it  was  verbally  agreed  between  him  and  one  Wes- 
ton  and  the  defendant's  creditors  (among  whom  was  the 
plaintiff),  that  Weston  should  pay,  and  the  creditors  should 
accept,  ten  shillings  in  the  pound  upon  Marden 's  debts,  in 
full  discharge  and  satisfaction  thereof,  and  that  the  creditors 
should  assign  their  claims  to  Weston.  When  it  was  after- 
wards proposed  to  reduce  this  agreement  to  writing,  the 
plaintiff  refused  to  sign,  and  brought  this  action  against 
Marden  for  the  full  amount  of  his  claim,  objecting  to  the 
defence  upon  the  agreement,  and  Weston's  readiness  and 
ability  to  perform  it,  that  it  was  not  enforceable  against 
Weston  for  want  of  a  memorandum  in  writing,  and  conse- 
quently his  own  engagement  to  accept  ten  shillings  was  nudum 
pactum.  The  defence  was  nevertheless  held  good.  Chambre, 
J.,  said:  "This  was  a  contract  to  purchase  the  debts  of  the 
several  creditors,  instead  of  being  a  contract  to  pay  or  dis- 
charge the  debts  owing  by  Marden.  It  was  of  the  substance 
of  the  agreement  that  these  debts  should  remain  in  full  force, 
to  be  assigned  to  Weston.  When  he  had  purchased  them  he 
did  not  mean  to  exact  them  rigorously,  but  the  contract  was 
a  contract  of  purchase,  and  he  had  a  right  to  make  use  of 
the  names  of  the  original  creditors  to  recover  the  same  to 
the  full  amount,  if  Marden  had  effects  to  satisfy  the  debts. 
Instead  of  being  a  contract  to  discharge  Marden  from  his  debts, 
it  was  a  contract  to  keep  them  on  foot. "  l  If  the  effect  of  the 
decision  should  be  taken  to  be,  that  the  mere  discharge  of 
the  third  person's  liability  to  his  original  creditor,  without 
discharging  him  altogether,  is  not  what  the  statute  contem- 
plates, it  might  seem  to  be  setting  up  a  nice  distinction. 
But  its  real  force  is  conceived  to  be  that  the  primary  and 

i  Anstey  v.  Marden,  1  Bos.  &  P.  X.  R.  133.     See  Therasson  v.  McSpe- 
don,  2  Hilton  (N.  Y.)  1 ;  Humphreys  v.  St.  Louis  R.  R.,  37  Fed.  Rep.  307. 


270  STATUTE   OF  FRAUDS.  [CH.   X. 

essential  character  of  the  transaction  was  a  purchase  for 
value  of  certain  choses  in  action,  differing  from  any  other 
purchase  merely  in  the  fact  that  incidentally  the  debt  of  a 
third  party  was  satisfied.1  And  it  is  perhaps  well  to  observe 
that  this  decision  is  not,  as  was  intimated  by  one  of  the 
judges,  in  conflict  with  the  previous  case  of  Chater  v.  Beckett, 
nor  with  the  still  earlier  case  of  Case  v.  Barber;  for  in  both, 
while  there  was  a  strong  resemblance  in  other  respects  to 
Anstey  v.  Harden,  the  circumstance  of  the  assignment  of  the 
debt  to  the  party  making  the  promise  was  wanting,  and  the 
promise  was  rightly  held  to  be  within  the  statute.2 

§  211.  Lastly,  the  case  of  Tomlinson  v.  Gill  requires  to  be 
noticed,  with  a  view  to  an  accurate  understanding  of  the 
question  under  discussion.  The  reporter's  statement  of 
facts  is  that  "  the  defendant  Gill  promised,  that  if  the  widow 
of  the  intestate  John  Gill  would  permit  him  to  be  joined  with 
her  in  the  letters  of  administration  of  his  assets,  he  would 
make  good  any  deficiency  of  assets  to  discharge  the  intes- 
tate's debts;"  and  he  adds  that  the  case  was  on  a  "bill  by 
creditors  of  the  intestate  against  Gill,  for  a  satisfaction  of 
their  debts,  and  performance  of  the  promise."  But  appar- 
ently this  is  incorrectly  stated,  for  the  Chancellor,  Lord 
Hardwicke,  says :  "  The  bill  is  founded  on  an  argument 
[agreement],  which  is  not  unusual  where  there  is  a  contest 
about  obtaining  administration.  It  is  not  uncommon,  upon 
such  occasions,  for  the  simple  contract  creditors  to  agree, 
that  administration  shall  be  granted  to  a  specialty  creditor, 

1  It  is  necessary  to  remark,  in  regard  to  Mr.  Roberta's  account  of  this 
case  (Roberts  on  Frauds,  226),  that  he  omits  in  his  statement  of  it  the 
cardinal  fact  that  the  debts  were  assigned  to  Weston.     This  is  what  gives 
the  transaction  the  distinctive  character  of  a  purchase.     The  same  author 
classes  this  case  with  Castling  v.  Aubert,  as  being  both  cases  of  "  consid- 
ering the  transaction  in  the  light  of  a  purchase."     But  it  should  be  borne 
in  mind  that  the  former  was  a  purchase  of  the  debt,  the  latter  of  a  secur- 
ity for  the  debt;  the  former  completely  extinguished  the  original  credi- 
tor's claim  upon  the  original  debtor;  the  latter  left  that  claim  unimpaired. 

2  Chater  v.  Beckett,  7  T.  R.  201 ;  Case  v.  Barber,  T.  Raym.  450,  de- 
cided four  years  only  after  the  enactment  of  the  statute. 


CH.   X.]  GUARANTIES.  271 

upon  terms  of  his  agreeing  to  pay  the  debts  equally  and  pari 
passu.  Such  agreements  are  seldom  put  in  writing."  Again, 
when  speaking  of  the  creditors'  right  tp  relief  in  equity,  he 
says  that  they  are  entitled  to  it,  "for  the  promise  was  for  the 
benefit  of  the  creditors,  and  the  widow  is  a  trustee  for  them. 
2dly,  the  bill  is  brought  for  an  account,  and  that  draws  to  it 
relief,  like  the  common  case  of  a  bill  to  be  paid  a  debt  out  of 
assets. "  l  This  language  is  scarcely  reconcilable  with  an 
absolute  engagement  to  see  the  whole  amount  of  the  debts 
paid,  but  indicates  rather  a  transaction  in  part  like  that  in 
Castling  v.  Aubert,  the  control  of  the  assets  being  the  security 
acquired  by  the  defendant,  and  in  part  like  Williams  v. 
Leper,  the  assets  begin  a  fund  between  both  the  defendant  and 
his  fellow-creditors.  The  case  was,  however,  decided  before 
either  of  those  mentioned.  The  Chancellor  remarks  that 
"the  modern  determinations  have  made  a  distinction  between 
a  promise  to  pay  the  original  debt,  and  on  the  foot  of  the 
original  contract,  and  where  it  is  on  a  new  consideration ;  " 
but  his  only  reference  is  to  Read  v.  Nash,  which  was  decided 
a  few  years  earlier  than  the  case  before  the  court,  and  which 
is  declared  to  be  strong  to  the  purpose  that  here  was  a  new, 
distinct  consideration,  such  as  would  take  the  defendant's 
promise  out  of  the  statute.2  It  is  difficult  to  see  how  Read  v. 
Nash  applied.  There  the  defendant  promised  to  pay  a  certain 
sum  and  costs,  in  consideration  that  the  plaintiff  would  not 
proceed  to  trial,  and  would  withdraw  his  record,  in  an  action 
against  a  third  person  for  assault;  and  the  express  ground 
for  the  decision  was  that  the  third  party,  the  defendant  in 
the  action  for  the  assault,  was  not  a  debtor,  that  he  did  not 
appear  to  have  been  guilty  of  any  default  or  miscarriage,  and 
that  as  the  cause  was  not  tried,  and  he  might  have  succeeded, 
he  never  was  liable  to  the  particular  debt,  damages,  or  costs. 
Clearly,  therefore,  the  case  affords  no  support  to  the  decision 
in  Tomlinson  v.  Gill,  where  the  debt  was  certainly  actually 

1  Tomlinson  v.  Gill,  1  Ambler  380. 
8  Read  v.  Nash,  1  Wils.  305. 


272  STATUTE   OF   FRAUDS.  [CH.  X. 

existing,  if  that  decision  be  taken  as  broadly  as  the  reporter's 
statement  indicates. 

§  212.  Having  now  examined  these  several  cases  at  length, 
let  us  see  if  any  one  general  and  comprehensive  rule  can  be 
stated  as  justified  by  them,  and  not  violating  the  spirit  and 
policy  of  the  Statute  of  Frauds.  It  is  said  by  Mr.  Roberts, 
in  his  excellent  treatise  on  the  construction  of  the  statute, 
and  as  the  broad  result  of  these  cases,  that  if  the  considera- 
tion of  the  new  promise  "  spring  out  of  any  new  transaction  or 
move  to  the  party  promising  upon  some  fresh  and  substantive 
ground  of  a  personal  concern  to  himself,  the  Statute  of 
Frauds  does  not  attach."  J  If  taken  after  a  critical  examina- 
tion of  the  cases  themselves,  this  rule  can  hardly  be  said  to 
assert  any  error;  but  the  generality  of  the  expressions  used 
is  such  that  it  is  not  surprising  to  find  it  since  extended  to 
cases  which  bear  not  the  least  resemblance  to  those  on  which 
the  rule  professes  to  be  based.2  Again,  Chief  Justice  Kent, 
in  the  case  of  Leonard  v.  Vredenburgh,  took  occasion  to 
classify  all  guaranties  under  the  Statute  of  Frauds  with  refer- 

1  Roberts  on  Frauds,  232. 

2  Myers  v.  Morse,  15  Johns.  (N.  Y.)  425;  Meech   v.  Smith,  7  Wend. 
(N.  Y.)  315;  King  v.  Despard,  5  Wend.  (N.  Y.)  277 ;  Creel  v.  Bell,  2  J.  J. 
Marsh.  (Ky.)  309 ;  Taylor  ».  Drake,  4  Strobh.  (S.  C.)  Law  431 ;  Cooper 
r.  Chambers,  4  Dev.  (N.  C.)  261;  Tompkins  v.  Smith,  3  Stew.  &  P.  (Ala.) 
54;  Ragland  v.   Wynn,  1   Sel.  Cas.  (Ala.)  270;  Tighe  v.   Morrison,  41 
Hun  (N.  Y.)  1 ;  Kansas  City  Sewer  Pipe  Co.  v.  Smith,  36  Mo.  App.  608; 
Winn  v.  Hilyer,  43  Mo.  App.  139.     Dibble  ».  De  Mattos,  8  Wash.  542; 
It  is  uniformly  held,  however,   that  forbearance  by  the  creditor  is  not 
enough  to  take  the  defendant's  promise  out  of  the  statute.     Hilton  v. 
Dinsmore,  21  Me.  410,  overruling  Russell  v.  Babcock,  14  Me.  138;  Har- 
rington v.  Rich,  6  Vt.   666  ;  Caston  v.   Moss,  1  Bailey  (S.  C.)  Law  14 ; 
Musick  v.  Musick,  7  Mo.  495 ;  King  ».  Wilson,  2  Stra.  873 ;    Thomas  v. 
Delphy,  33  Md.  373 ;    Lang  ».  Henry,  54  N.  H.  57.     But  see  Chapline 
v.  Atkinson,  45  Ark.  67;  Killough  r.  Payne,  52  Ark.  174.     Nor  the  cred- 
itor's merely  stating  and  swearing  to  the  account.     Brown  v.  Barnes,  6 
Ala.  694.     Qucerc,  if  forbearance,  protracted  (without  agreement  to  that 
effect)  so  long  as  to  involve  the  loss  of  the  claim  against  the  original 
debtor,  as  by  limitation,  etc.,  will  take  the  case  out  of  the  statute.     Tem- 
pletons  v.  Bascom,  33  Vt.  132.   Compare  Brightman  v.  Hicks,  108  Mass. 
246. 


CH.   X.]  GUARANTIES. 

ence  to  the  consideration,  and  his  third  class  consists  of 
cases  where,  as  he  says,  "the  promise  to  pay  the  debt  of 
another  arises  out  of  some  new  and  original  consideration  of 
benefit  or  harm  moving  between  the  newly  contracting  par- 
ties. "  1  In  the  rule,  as  thus  stated,  for  which  Mr.  Roberts  is 
(not  quite  correctly)  cited  as  authority,  we  perceive  scarcely 
any  recognition  of  the  distinctive  features  of  the  cases  them- 
selves from  which  the  doctrine  was  first  extracted.  But  act- 
ing upon  this  rule,  and  too  often  pressing  it  against  the  clear 
application  of  the  statute,  some  of  the  American  courts  have 
held  that,  wherever  there  was  a  new  consideration,  distinct 
from  that  which  supported  the  original  debtor's  liability,  and 
moving  between  the  parties  to  the  guaranty,  the  defendant's 
promise  was  saved  from  the  operation  of  the  statute.2  How- 
ever respectable  the  countenance  it  has  received,  this  doc- 
trine, if  unqualified,  must  be  repudiated  as  not  based  upon 
authority,  and  as,  to  a  great  degree,  nullifying  the  statute. 
And  it  may  also  be  fairly  said  that  the  better  opinion  of 
courts  and  of  commentators  is  now  leaning  against  it.3  It 

1  Leonard  v.  Vredenburgh,  8  Johns.  (N.  Y.)  29. 

2  See  the  cases  cited  p.  272,  n.  2.     Several  decisions,  whose  language 
affirms  this  doctrine,  have,  in  previous  pages  of  this  chapter,  been  referred 
to  other  principles  by  which  they  were  clearly  determinable.     In  a  case 
in  Vermont,  Templetons  r.  Bascom,  33  Vt  132.  defendant,  being  sole  heir 
to.  and  coming  into  possession  of  an  estate  which  was  solvent,  stated  to 
the  plaintiffs,  who  held  a  claim  against  the  estate,  that  it  was  a  just 
claim,  that  they  might  give  themselves  no  trouble  about  it,  and  that  he 
would  pay  it,  etc.     Held,  that  the  Statute  of  Frauds  did  not  require  the 
defendant's  promise  to  be  in  writing.     The  opinion  of  the  court  proceeds 
upon  the  ground  that  the  promise  was  founded  upon  a  new  and  distinct 
consideration,  moving  from  the  plaintiffs  directly  to  the  defendant ;  to 
•wit,  their  "waiver  "  of  their  claim  against  the  estate.     By  the  statement 
of  facts,  it  would  appear  that  they  lost  their  claim  against  the  estate  by 
their  forbearance  to  present  it.     If  the  defendant's  promise  was  taken  in 
substitution  for  the  liability  of  the  estate,  then  the  decision  was  correct 
upon  other  and  obvious  grounds.     If  it  was  not  so  substituted,  but  the 
claim  against  the  estate  was  merely  forborne  for  a  time,  then  the  decision 
is  clearly  not  law. 

8  Kingsley  i>.  Balcome.  4  Barb.  (X.  Y.)   131,  per  Sill,  J. ;    Noyes  v. 
Humphreys,  11  Grattan  (Va.)  638;  Floyd  v.  Harrison,  4  Bibb  (Ky.)  76: 

18 


274  STATUTE   OF   FKAUDS.  [CH.   X. 

has  been  said  that  so  long  as  the  original  debtor  remains 
liable,  so  long  as  the  plaintiff  has  a  double  remedy,  one 
against  him  and  the  other  against  the  defendant,  the  latter's 
promise  is  necessarily  affected  by  the  statute.  But  if  this  is 
so,  Castling  v.  Aubert  and  Williams  v.  Leper  are  wrong,  for 
in  neither  of  them  was  the  claim  of  the  creditor  against  his 
original  debtor  discharged.  And,  indeed,  if  in  any  case  such 
claim  should  be  held  so  discharged,  there  could  be  no  ques- 
tion under  the  statute ;  the  defendant's  promise  then  being, 
as  we  have  heretofore  seen,  original,  and  not  collateral.  The 
words  of  the  statute  itself,  in  their  simple  meaning,  seem  to 
give  us  the  true  rule.  It  contemplates  a  promise  to  answer 
for  another's  debt;  a  promise  for  that  purpose;  a  mere  guar- 
anty ;  and  it  never  was  meant  that  a  man  should  set  it  up  as 
a  pretext  to  escape  from  the  performance  of  a  valid  verbal 
obligation  of  his  own,  because,  in  performing  it,  the  discharge 
of  a  third  party's  debt  was  incidentally  involved.1 

Barker  v.  Bucklin,  2  Demo  (N.  Y.)  45;  Chitty  on  Contracts,  450;  Lamp- 
son  r.  Hobart,  28  Vt.  697;  Cross  v.  Richardson,  30  Vt.  641 ;  Hassinger  v. 
Newman,  83  Ind.  124;  Birchell  v.  Neaster,  36  Ohio  St.  331;  White%w. 
Rintoul,  108  N.  Y.  222. 

1  Nelson  v.  Boynton,  3  Met.  (Mass.)  396,  per  Shaw,  C.  J.  In  another 
later  case,  decided  in  the  Supreme  Court  of  Massachusetts,  we  find  the 
true  principle  applied  upon  the  following  facts.  The  plaintiff  being 
the  owner  of  a  major  part  of  the  stock  in  an  incorporated  company,  and 
holding  a  note  of  the  company  for  83,350,  and  being  also  indorsee  on 
their  notes  for  about  §4,000,  agreed  with  the  defendant  to  transfer  to  him 
the  shares  and  the  note  of  $3,350 ;  in  consideration  of  which  the  de- 
fendant conveyed  to  him  a  certain  farm,  and  verbally  undertook  to  save 
him  harmless  on  his  indorsements.  The  plaintiff,  having  afterwards 
taken  up  the  indorsed  notes,  brought  his  action  against  the  defendant  on 
his  promise  to  save  him  harmless.  It  was  contended  that  the  promise 
was  void  by  the  statute.  The  court  considered  that,  as  a  promise  made 
to  the  debtor,  the  statute  could,  for  that  reason,  have  no  application  to  it 
(ante,  §  188),  but  hold  that,  if  it  should  be  construed  as  a  promise,  the 
effect  of  which,  if  performed,  would  amount  to  a  guaranty  that  the  com- 
pany as  promisors  shouM  pay  the  notes  and  thus  save  the  plaintiff  from 
his  liability  thereon  as  indorser,  still  this  would  not,  under  the  circum- 
stances of  the  case,  be  within  the  statute.  Chief  Justice  Shaw,  deliver- 
ing judgment,  says:  "Was  he  [the  defendant]  to  take  the  plaintiff's 


CH.   X.]  GUARANTIES.  275 

§  213.  Upon  the  principle  just  stated,  the  Court  of  Ex- 
chequer have  recently  settled  the  question,  whether  the 
guaranty  of  a  factor  selling  on  a  del  credere  commission  was 
within  the  statute,  as  a  promise  to  answer  for  those  to  whom 
his  sales  were  made.  Parke,  B.,  delivered  the  opinion  of  the 
court  to  the  effect  that  it  was  not.  "Doubtless,"  he  said, 
"  if  they  [the  factors  defendant]  had  for  a  percentage  guar- 
anteed the  debt  owing,  or  performance  of  the  contract  by  the 
vendee,  being  totally  unconnected  with  the  sale,  they  would  not 
he  liable  without  a  note  in  writing  signed  by  them;  but  being 
the  agents  to  negotiate  the  sale,  the  commission  is  paid  in 
respect  of  that  employment ;  a  higher  reward  is  paid  in  con- 
sideration of  their  taking  greater  care  in  sales  to  their  cus- 
tomers, and  precluding  all  question  whether  the  loss  arose 
from  negligence  or  not,  and  also  for  assuming  a  greater  share 
of  responsibility  than  ordinary  agents,  namely,  responsibility 
for  the  solvency  and  performance  of  their  contracts  by  their 
vendees.  This  is  the  main  object  of  the  reward  being  given 

large  interest  in  the  stock  and  property  of  the  Iron  Company,  constitut- 
ing the  natural  fund  out  of  which  these  indorsed  notes  were  to  be  paid, 
without  taking  it  subject  to  the  incumbrances  ?  Paying  the  debts  of  the 
company,  after  the  defendant  had  become  a  shareholder  of  more  than  half, 
would  in  effect,  and  to  the  extent  of  his  interest  in  those  shares,  enure  to 
his  own  direct  benefit.  We  are  therefore  of  opinion,  that  this  was  a  new 
and  original  contract  between  these  parties,  originating  in  a  new  consid- 
eration moving  from  the  plaintiff  to  the  defendant,  in  effect  placing  the 
funds  in  the  hands  of  the  defendant,  out  of  which  these  notes,  in  due  course 
of  business,  would  be  expected  to  be  paid."  Alger  v.  Scoville,  1  Gray 
397.  These  cases  are  approved  in  Jepherson  ».  Hunt,  2  Allen  (Mass.) 
417.  See  also  Fitzgerald  r.  Dressier,  7  C.  B.  N.  a.  374.  In  Kingsley  v. 
Balcome,  4  Barb.  (N.  Y.)  138,  Sill,  J.,  says:  "  The  true  rule  is  that  the 
new  '  original  consideration  '  spoken  of  must  be  such  as  to  shift  the  actual 
indebtedness  to  the  new  promisor.  So  that  as  between  him  and  the 
original  debtor  he  must  be  bound  to  pay  the  debt  as  his  own,  the  latter 
standing  to  him  in  the  relation  of  surety."  The  Supreme  Court  of  Indi- 
ana say  the  new  consideration  must  be  "of  such  a  character  that  it  would 
support  a  promise  to  the  plaintiff  for  the  payment  of  the  same  sum  of 
money,  without  reference  to  any  debt  from  another."  Chandler  r.  David- 
son, 6  Blackf.  367.  Emerson  v.  Slater,  22  Howard  28.  As  to  this  rule  for 
determining  whether  the  statute  applies,  see  post,  §  214.  See  also  Lookout 
Mt.  R.  R.  v.  Houston,  85  Tenn.  224. 


'276  STATUTE   OF  FRAUDS.  [CH.    X. 

to  them ;  and  though  it  may  terminate  in  a  liability  to  pay 
the  debt  of  another,  that  is  not  the  immediate  object  for  which 
the  consideration  is  given;  and  the  case  resembles  in  this 
respect  those  of  Williams  v.  Leper,  and  Castling  v.  Aubert. "  l 
And  in  Wolff  v.  Koppel,  in  the  Supreme  Court  of  New  York, 
Cowen,  J.  (whose  opinion  Baron  Parke  speaks  of  as  a  very 
able  one,  and  adopts  as  expressing  his  own  views  upon  the 
subject),  takes  the  same  ground,  remarking  that  the  contract 
of  the  factor  in  such  a  case  has  "  an  immediate  respect  to  his 
own  duty  or  obligation.  The  debt  of  another  comes  inciden- 
tally as  a  measure  of  damages."  2  The  observation  of  Parke, 
B.,  that  if  the  defendants  in  the  case  before  him  had  merely, 
and  without  being  connected  with  the  sale,  guaranteed  the 
debt  owing  or  performance  of  the  contract  by  the  third  party 
for  a  percentage,  doubtless  their  engagement  would  have 
required  a  writing,  is  especially  noteworthy ;  for  such  a  case 
would  present  the  naked  point  of  a  new  arid  independent  con- 
sideration moving  from  the  creditor  to  the  guarantor,  and 
thus  the  rule  which  has  been  referred  to,  that  such  a  con- 
sideration of  itself  takes  a  guaranty  out  of  the  statute,  is 
shown  to  be  distinctly  denied  by  this  most  respectable  English 
authority.3 

§  214.  The  difficulty  which  some  of  the  cases  decided  since 
the  earlier  editions  of  this  treatise  have  shown  to  exist  in 
applying  admitted  rules,  will  justify  a  re-examination  of 

1  Couturier  v.  Hastie,  8  Exch.  56.     See  this  case  commented  upon  by 
Wood,  V.  C.,  in  Wickham  «.   Wickham,  2  Kay  &  J.  478;  Sherwood 
v.  Stone,  14  N.  Y.  267.     See  Sutton  v.  Grey,  L.  R.  1  Q  B.  D.  1894,  285. 

2  Wolff  v.  Koppel,  5  Hill  460.     See  also  Swan  v.  Nesmith,  7  Pick. 
(Mass.)  220;  Bradley  v.   Richardson,   23  Vt.  720;  Suman  r.    Inman,  6 
Mo.  App.  384  ;  Guggenheim  v.  Rosenfeld,  9  Baxter  (Tenn.)  553.     These 
cases  of  del  credere  factors'  guaranties  may  be  regarded  as  analogous  to 
cases  of  sales  by  defendant  to  plaintiff  of  a  third  party's  obligation  to  the 
defendant,  accompanied  by  his  guaranty  that  the   obligation  shall  be 
worth  to  the  plaintiff  what  it  is  accepted  as  worth  (ante,  §  165).     The 
factor  undertakes  that  his  sales  purporting  to  be  worth  a  certain  amount 
shall  be  worth  that  amount  to  his  principal. 

8  Evans  ».  Duncan,  1  Tyrw.  283;  on  the  authority  of  Senior  t<.  Butt, 
Hil.  T.  1827,  iu  the  King's  Bench. 


CH.   X.]  GUARANTIES.  277 

those  rules  as  they  regard  cases  in  which  the  original  debtor 
remains  liable.  It  is  frequently  said  that,  where  the  leading 
object  of  the  defendant  in  agreeing  to  pay  or  answer  for  the 
third  party's  debt  is  to  benefit  himself \  the  statute  does  not 
apply.1  It  is  certainly  true  that  in  those  cases  where  the 

1  It  must  be  confessed  that  this  view  has  been  recognized  by  the 
Supreme  Court  of  the  United  States.  In  Emerson  v.  Slater,  22  How.  28, 
the  plaintiff  had  been  employed  by  a  railroad  company  to  build  certain 
bridges  on  their  line,  and  the  company  failing  to  make  its  monthly  pay- 
ments as  agreed,  the  plaintiff  refused  to  go  on.  The  defendant  was  a 
large  stockholder  in  the  road,  and  had  leased  to  the  company  railroad  iron 
to  the  value  of  sixty-eight  thousand  dollars,  and,  as  a  security  for  pay- 
ment, held  an  assignment  of  the  proceeds  of  the  road  to  that  amount,  with 
interest,  which  was  to  be  paid  in  monthly  instalments  of  five  thousand 
dollars.  Unless  the  bridges  were  completed  there  could  be  no  proceeds, 
and  the  company  could  not  pay  for  the  iron.  The  defendant  orally  prom- 
ised to  pay  the  plaintiff  if  he  would  go  on  and  complete  the  bridges;  and, 
to  secure  him  from  any  loss  on  such  engagement,  he  took  from  the  com- 
pany securities  consisting  of  real  estate  and  the  company's  bonds  secured 
by  the  mortgage  on  the  road,  to  an  amount  deemed  by  the  company  and 
himself  sufficient  to  indemnify.  The  company  itself  was  insolvent.  The 
court  held,  that  the  defendant's  promise  was  not  within  the  statute.  They 
say  : "  Whenever  the  main  purpose  and  object  of  the  promisor  is  not  to 
answer  for  another,  but  to  subserve  some  pecuniary  or  business  purpose  oj 
his  own,  involving  either  a  benefit  to  himself,  or  damage  to  the  other  con- 
tracting party,  his  promise  is  not  within  the  statute,  although  it  may  be  in 
form  a  promise  to  pay  the  debt  of  another,  and  although  the  performance  of 
it  may  incidentally  have  the  effect  of  extinguishing  that  liability."  And 
so  again  in  Davis  v.  Patrick,  141  U.  S.  479,  where  the  facts  were  not 
materially  different,  it  was  held  that  the  Statute  of  Frauds  did  not  apply. 
The  court  cite  and  quote  from  Emerson  v.  Slater,  and  add,  "  There  is  a 
marked  difference  between  a  promise  which,  without  any  interest  in  the 
subject  matter  of  the  promise  in  the  promisor,  is  purely  collateral  to  the 
obligation  of  a  third  party,  and  that  which  though  operating  upon  the 
debt  of  a  third  party,  is  also  and  mainly  for  the  benefit  of  the  promisor. 
The  case  before  us  is  in  the  latter  category."  (See  also  Elkins  v.  Timlin, 
151  Pa.  St.  491,  and  cases  cited ;  Walther  v.  Merrell,  6  Mo.  App.  370.) 
Some  expressions  used  by  Chief  Justice  Shaw  in  the  opinion  on  Nelson 
v.  Boynton,  3  Met.  (Mass.)  396,  are  frequently  quoted  in  support  of 
decisions  holding  the  statute  to  be  inapplicable  where  the  defendant's 
"  leading  object  "  was  to  obtain  an  advantage  to  himself.  (See  among 
others  Patton  ».  Mills,  21  Kansas  163;  Kansas  City  Co.  p.  Smith,  36 
Mo.  App.  608.)  But  the  contract  before  the  court  in  Nelson  v.  Boynton 
was  held  to  be  within  the  statute  ;  and  rightly  so,  as  the  lien  which  the 
plaintiff  relinquished  did  not  enure  to  the  defendant's  benefit. 


278  STATUTE    OF   FRAUDS.  [CH.  X. 

promise  of  guaranty,  although  the  original  debt  continues,  is 
unaffected  by  the  statute,  the  leading  object  of  the  defendant 
in  making  that  promise  will  appear  to  be  to  benefit  himself. 
But  when  we  put  it  conversely,  and  attempt  to  set  up  the 
object  of  the  defendant  as  a  test  of  the  application  of  the 
statute,  we  find  that  it  does  not  practically  answer  that  pur- 
pose. For  what  is  a  leading  object  as  distinguished  from  a 
secondary  one,  in  any  sense  in  which  a  court  can  define  or  a 
jury  ascertain  it?  And  how  can  the  object  of  making  a  prom- 
ise be  made  the  test  of  its  legal  obligation  ?  We  must  come 
after  all  to  the  question,  what  state  of  facts  implies,  in  law, 
the  existence  of  such  an  object  or  purpose.  Again,  it  is  fre- 
quently said  that  considerations  of  a  certain  sort  moving 
between  the  original  creditor  and  the  new  promisor  make 
the  case  one  to  which  the  statute  does  not  apply ;  and  this 
is  sometimes  said  by  courts  which  do  not  profess  to  recognize 
the  notion  which  once  prevailed,  that  "any  new  and  inde- 
pendent consideration  of  benefit  or  harm  moving  between  the 
newly  contracting  parties  "  takes  the  case  out  of  the  statute. 
But  the  application  of  the  statute  does  not  depend  upon  the 
question  from  whom  the  consideration  moves,  nor  upon  the 
question  what  sort  of  consideration  it  is ;  for  the  contract  of 
guaranty,  like  every  other  contract,  requires  to  be  supported 
by  a  valid  consideration,  and  one  valid  consideration,  as 
such,  is  as  good  as  another.  "  The  question,  indeed,  is,  What 
is  the  promise  ?  Not,  what  the  consideration  for  that  promise 
is ;  for  it  is  plain  that  the  nature  of  the  consideration  cannot 
affect  the  terms  of  the  promise  itself,  unless  it  be  an  extin- 
guishment of  the  liability  of  the  original  party."1  So  in  a 
case  in  Pennsylvania,2  the  Supreme  Court  say  that  it  can 
make  no  difference  that  the  new  consideration  moves  from 
the  promisee  to  the  promisor,  and  the  danger  which  the  stat- 
ute is  intended  to  guard  against  exists,  "  no  matter  whence 
the  consideration  of  the  contract  proceeded  or  to  whom  it 

1  Williams's  Saunders,  232 ;  Birchell  v.  Neaster,  36  Ohio  St.  331. 

2  Maule  v.  Bucknell,  50  Pa.  St.  39. 


CH.    X.]  GUARANTIES.  279 

passed. "  To  the  same  effect  is  a  very  able  judgment  of  the 
Supreme  Court  of  Vermont,1  not  to  speak  of  many  other  well- 
considered  cases  decided  earlier,  and  which  are  referred  to 
in  the  text. 

§  214  a.  It  is  not  the  motive  of  the  promisor  nor  the  nature 
of  the  consideration  for  his  promise,  but  the  substance  of  the 
transaction  between  him  and  the  promisee,  that  must  be 
regarded  in  determining  whether  the  promise  is  within  the 
statute.  If  the  defendant  come  under  an  obligation  to  pay 
the  amount  of  the  debt,  independently  of  any  contract  of 
guaranty,  his  promise  to  pay  it,  although  expressed  as  a 
guaranty  or  an  agreement  to  answer  for  the  debt  of  another,  is 
binding  without  writing.2  The  substance  of  the  transaction 

1  Fullam  v.  Adams,  37  Vt  391. 

2  Elson  v.  Spraker,  100  Ind.  374;  Board  of  Commissioners  v.  Cin- 
cinnati Co.,  128  Ind.  240;  Emerson  ».  Slater,  22  How.  (U.  S.)  28;  Preston 
v.  Young,  46  Mich.  103;  Davis  v.  Patrick,  141  U.  S.  479. 

To  state  it  more  exactly,  if  the  circumstances  of  the  transaction,  which 
include  the  defendant's  undertaking  to  pay  the  third  party's  debt,  are 
such  as  to  raise  an  independent  legal  obligation  on  the  part  of  the  defend- 
ant to  pay  that  amount  to  the  plaintiff,  the  fact  of  debt  by  the  third 
party  being  material  to  the  transaction  only  as  ascertaining  the  amount 
to  be  so  paid  by  the  defendant,  the  statute  does  not  apply.  In  a  late 
case  in  the  New  York  Court  of  Appeals  (White  v.  Rentoul,  108  N.  Y. 
222)  there  is  a  valuable  discussion  of  New  York  cases  since  Leonard  v. 
Vredenburgh.  Brown  t;.  Webber,  38  N.  Y.  187;  Mallory  v.  Gillett,  21 
N.  Y.  412;  Ackley  v.  Parmenter,  08  N.  Y.  425.  The  opinion,  which  was 
unanimous,  declares  that  the  rule  stated  in  Leonard  v.  Vredenbnrgh. 
that  any  new  and  original  consideration  moving  between  the  parties  to 
the  contract  of  guaranty  took  it  out  of  the  statute,  was  "  dangerously 
broad  and  capable  of  grave  misapprehension  ; "  that  succeeding  cases 
had  imposed  upon  it  the  necessary  limitations;  and  that  the  result  had 
been  the  establishment  of  the  rule  (which  the  court  adopts  and  applies 
to  the  case  before  them)  that  "when  the  primary  debt  subsists  and  was 
antecedently  contracted,  the  promise  to  pay  it  is  original  when  it  is 
founded  on  a  new  consideration  moving  to  the  promisor  and  beneficial 
to  him,  and  such  that  the  promisor  thereby  comes  under  an  independent 
duty  of  payment  irrespective,  of  the  liability  of  the  principal  debtor."  This 
is  sound  doctrine,  and  its  recognition  by  such  high  authority  should 
tend  strongly  to  settle  the  law.  On  the  other  hand,  the  decision  of  the 
Supreme  Court  of  the  United  States  in  Davis  v.  Patrick,  141  U.  S.  479, 


280  STATUTE   OF  FRAUDS.  [CH.    X. 

is  undertaking  to  pay  his  own  .debt  in  a  particular  way.  But 
where  the  original  party  remains  liable,  and  there  is  no 
liability  on  the  part  of  the  guarantor  or  his  property  except 
such  as  arises  from  his  express  promise,  the  statute  applies.1 
It  is  not  within  the  ability  of  the  author  to  reconcile  all  the 
decisions  under  this  most  intricate  head  of  the  subject ;  but 
it  is  believed  that  the  principle  above  stated  (which  is  but 
repeated  from  the  previous  editions  of  this  work)  will,  when 
carefully  applied,  be  found  upon  the  whole  satisfactory. 

§  214  b.  The  simplest  illustration  of  it  is  in  that  class  of 
cases  where  the  defendant  owes  a  third  party,  and  the  third 
party  owes  the  plaintiff,  and  by  agreement  between  the  three 
parties  the  defendant  is  to  pay  the  amount  of  his  debt  directly 
to  the  plaintiff,  although  the  third  party  remains  liable  to  the 
plaintiff;  the  promise  of  the  defendant,  being  really  a  promise 

seems  to  be  irreconcilable  with  this  doctrine.  The  facts  were  these. 
Davis,  being  a  large  creditor  of  a  silver  mining  company,  and  having 
given  an  order  for  silver  which  the  company  had  been  paid  for  by  Davis, 
but  had  not  delivered  to  him,  the  mine,  by  agreement  between  the 
company  and  Davis,  was  to  be  put  under  the  management  of  Patrick  by 
a  power  revocable  by  Davis  only  ;  in  pursuance  of  this  power,  and  upon 
the  promise  of  Davis  to  pay  him  for  doing  so,  Patrick  mined  and  trans- 
ported and  delivered  to  Davis  the  silver  which  had  been  ordered  by  him 
from  the  company.  Davis  refused  to  pay,  and  set  up  the  Statute  of 
Frauds,  stating  that  his  promise  to  pay  Patrick  was  collateral  to  the 
obligation  of  the  mining  company  to  pay  him.  The  evidence  tended 
strongly  to  show  that  Patrick  gave  credit  solely  to  Davis :  but  still  the 
company  was  not  released  from  its  obligation.  The  court  held  the 
defendant's  agreement  to  be  not  within  the  statute,  because  "  the  prom- 
isor had  a  personal,  immediate,  and  pecuniary  interest  in  the  transac- 
tion," and  was  therefore  a  party  "  to  be  benefited  by  the  performance  of 
the  promise"  ;  that  "  the  promise,  though  operating  upon  the  debt  of  the 
third  party,  was  also  and  mainly  for  the  benefit  of  the  promisor."  The 
transaction  between  Davis  and  Patrick  seems  to  have  been  simply  that 
Patrick  agreed  to  do  work  for  Davis,  and  Davis,  in  consideration  of  .that 
work,  agreed  to  pay  him  for  it  and  also  for  past  work,  the  company  being 
also  liable  to  the  same  extent.  The  court  cites  no  cases  in  support  of 
its  decision  except  Emerson  r.  Slater,  22  How.  43.  which  has  been 
already  considered,  ante,  §  212,  note,  and  §  214.  Winn  r.  Hilyer,  43  Mo. 
App.  139,  is  similar  to  Davis  v.  Patrick  ,and  decided  in  the  same  way. 
1  Williams's  Saunders,  211,  note. 


CH.   X.]  GUARANTIES.  281 

to  pay  his  own  debt,  is  not  required  to  be  in  writing.1  And 
the  cases  show  that  the  rule  holds,  whether  the  debt  of  the 
defendant  to  the  third  party  was  an  old  debt,  or  was  incurred 
at  the  same  time,  and  as  part  of  the  same  transaction,  with 
his  agreement  to  pay  to  the  plaintiff.  The  mere  fact  that  the 
defendant  has  received  property  from  the  third  party  does 
not  take  his  promise  out  of  the  statute  ;  it  must  appear  that 
he  incurred  a  debt  thereby  ;  and  not  only  so,  but  there  must 
be  an  agreement  that  the  amount  of  that  debt  shall  be  paid  to 
the  plaintiff;  —  a  purchase  or  acquisition  by  defendants  from 
plaintiff  by  reason  of  the  promise  of  some  property  or  benefit 
to  themselves,  such  as  would  show  the  promise  to  be  a  new 
promise  by  defendants  to  pay  a  debt  of  their  own  fairly  con- 
tracted in  such  purchase  or  acquisition.2 

§  214  c.  The  case  of  Furbish  v.  Goodnow,  in  Massachu- 
setts, demands  examination  under  this  head.  According  to 
the  report,  one  Redding  was  indebted  to  the  plaintiff  on  a 
promissory  note,  and  by  agreement  between  the  plaintiff  and 
Redding  and  the  defendants,  Redding  conveyed  certain  real 
estate  to  the  defendant,  and,  as  part  of  the  consideration 
therefor,  the  defendant  promised  to  pay  the  plaintiff  the 
amount  of  the  note.  If  the  substance  of  the  transaction  was, 
as  it  appears  to  have  been,  that  the  defendant  became  in- 
debted to  Redding  in  the  amount  which  Redding  owed  to 
the  plaintiff,  and,  by  agreement  between  the  three,  the 
defendant  was  to  pay  that  amount  directly  to  the  plaintiff, 
the  Statute  of  Frauds  by  an  unbroken  course  of  decisions 
(unless  Curtis  v.  Brown  3  be  an  exception)  fails  to  apply.  It 
was  held,  however,  that  it  did  apply.  There  is  no  allusion 
in  the  opinion  to  the  question  whether  the  defendant's  prom- 


§  165-172,  and  cases  there  cited.  Also  M'Laren  ».  Hutchin- 
son,  22  Cal.  187  ;  Conner  v.  Williams,  2  Rob.  (N.  Y.)  46;  Clymer  v.  De 
Young,  54  Pa.  St.  118;  Ford  v.  Finney,  35  Ga.  258;  Sanders  v.  Clason, 
13  Minn.  379;  Hoile  v.  Bailey,  58  Wise.  434;  Martin  v.  Davis,  80  WTisc. 
379;  Lowe  v.  Hamilton,  132  Ind.  406. 

8  Ante,  §§  166,  170,  §  216,  n.  1.   Richardson  v.  Bobbins,  129  Mass.  107. 

8  Curtis  v.  Brown,  5  Cnshing,  488. 


282  STATUTE   OF   FRAUDS.  [CH.   X. 

ise  was  not  in  effect  to  pay  his  own  debt.  The  court  say,  in 
the  first  place,  that  "  if  the  principal  and  immediate  object 
of  the  transaction  is  to  benefit  the  promisor,  not  to  secure  the 
debt  of  another  person,  the  promise  is  considered  not  as  col- 
lateral to  the  debt  of  another,  but  as  creating  an  original  debt 
from  the  promisor,  which  is  not  within  the  statute,  although 
one  effect  of  its  payment  may  be  to  discharge  the  debt  of 
another. " J  We  have  already  (ante,  §  214)  remarked  upon  the 
inadequacy  of  this  rule  for  determining  whether  the  statute 
applies.  But  the  court  say  farther :  "  When  the  original 
debtor  remains  liable,  yet  if  the  creditor,  in  consideration  of 
the  new  promise,  releases  some  interest  or  advantage  relating 
to  or  affecting  the  original  debt,  and  enuring  to  the  benefit  of 
the  new  promisor,  his  promise  is  considered  as  a  promise  to 
answer  for  his  own  debt,  and  the  case  is  not  within  the  stat- 
ute. But  if  no  [such]  consideration  moves  from  the  creditor 
to  the  new  promisor  [the  defendant],  and  the  original  debtor 
still  remains  liable  for  the  debt,  the  fact  that  the  promisee 
[the  plaintiff]  gives  up  something  to  that  debtor,  or  that  a 
transfer  of  property  is  made  or  other  consideration  moves 
from  that  debtor  to  the  new  promisor  [the  defendant]  to  in- 
duce the  latter  to  make  the  new  promise,  does  not  make  this 
promise  the  less  a  promise  to  answer  for  the  debt  of  another; 
but,  on  the  contrary,  the  fact  that  the  only  new  consideration 
either  enures  to  the  benefit  of  that  other  person  [the  original 
debtor],  or  is  paid  by  him  to  the  new  promisor  [the  defend- 
ant], shows  that  the  object  of  the  new  promise  is  to  answer 
for  his  debt."  It  is  certainly  true  that  if  the  creditor,  in 
consideration  of  the  new  promise,  release  some  interest  or 
advantage  relating  to  or  affecting  the  original  debt  and  enur- 
ing to  the  benefit  of  the  new  promisor,  the  statute  does  not 
apply ;  and  that,  notwithstanding  such  release,  if  it  does  not 
enure  to  his  benefit  the  statute  does  apply.  But  why  is  this? 
It  is  because  where  the  release  enures  to  his  benefit  the  sub- 
stance of  the  transaction  is  a  purchase  by  him  of  the  interest 
1  Furbish  v.  Goodnow,  98  Mass.  297. 


OH.   X.]  GUABANTIES.  283 

or  advantage  so  released,  at  the  price  of  the  amount  of  the 
original  debt ;  so  that  he  becomes,  as  such  purchaser,  a  debtor 
himself  to  the  plaintiff  to  the  same  amount ;  and  his  promise 
in  effect  is  to  pay  his  own  debt,  although  expressed  as  an 
agreement  to  pay  that  of  the  original  debtor.  On  the  other 
hand,  where  the  interest  or  security  released  does  not  enure 
to  the  benefit  of  the  new  promisor,  he  incurs  no  debt.  The 
release  is  a  sufficient  consideration  for  his  promise  to  pay  the 
debt  of  the  original  debtor,  but  that  is  not  enough  to  prevent 
the  application  of  the  statute.  Now,  if  this  explanation  of 
these  cases  is  the  right  one,  the  next  question  is,  Does  the 
same  rule  apply  to  a  defendant's  promise  to  pay  his  own  debt, 
whether  it  be  to  pay  it  to  his  own  creditor  or  to  the  nominee 
of  that  creditor?  In  the  cases  of  a  release  of  an  interest  or 
security  relating  to  the  debt,  which  release  enures  to  the 
benefit  of  the  new  promisor,  it  is  his  own  creditor  that  he 
agrees  to  pay.  In  the  case  of  Furbish  v.  Goodnow  it  was  the 
nominee  of  his  own  creditor  that  the  defendant  agreed  to  pay. 
What  is  the  difference?  If  there  be  none,  it  is  difficult  to 
see  on  what  ground  the  decision  in  Furbish  v.  Goodnow  can 
rest, 1 

§  214  d.  In  the  case  of  Curtis  v.  Brown,2  one  Coffin  was 
under  contract  with  the  defendants  to  build  for  them  certain 
houses,  under  which  the  work  proceeded  for  about  three 
months,  when  Coffin  released  the  defendants  from  the  con- 
tract, and  assigned  to  them  the  materials  on  hand,  in  con- 
sideration of  which  the  defendants  agreed  to  pay  all  the  bills 
for  labor  and  materials  then  outstanding,  and  among  them 
the  bill  for  which  the  plaintiff  sued.  The  court  held  that  he 
could  not  recover,  the  promise  of  the  defendants  not  being  in 
writing;  remarking,  among  other  things,  that  "the  plaintiff 
did  not  release  Coffin,  or  relinquish  any  lien  or  benefit ;  and 
although  there  was  a  good  consideration  in  law  for  the  defend- 

1  Compare  Urquhart  v.  Brayton,  6  Reporter  601 ;  and  see  ante,  §§  166  6, 
1G9,  171 ;  Wright  v.  Smith,  81  Va.  777. 

2  Curtis  P.  Brown,  5  Cush.  (Mass.)  488. 


284  STATUTE   OF   FEAUDS.  [CH.   X. 

ant's  promise,  it  was  a  consideration  moving  from  Coffin, 
and  not  from  the  plaintiff."  The  question  was  not  raised 
whether  the  transaction  was  such  as  to  create  against  the 
defendants  an  independent  obligation  to  pay  Coffin  money  to 
the  same  amount  as  the  debts  which  they  undertook  to  pay ; 
and  it  would  seem  from  the  report  of  the  facts  that  it  was 
not.  The  case  was  put  upon  the  question  of  the  nature  of 
the  consideration  and  the  party  from  whom  it  moved.  If  it 
does  necessarily  depend  upon  that  question,  it  cannot  be 
denied  that  it  supports  the  decision  in  Furbish  v.  Goodnow ; 
and  is  subject  also  to  the  same  difficulties.1 

§  214  e.  We  have  spoken  thus  far  of  the  first  class  of  cases 
to  which  the  rule  stated  in  §  214  a  applied ;  namely,  where 
the  defendant  owes  a  third  party  and  the  third  party  owes 
the  plaintiff,  and,  by  agreement  between  the  three  parties,  the 
defendant  is  to  pay  the  amount  of  his  debt  directly  to  the 
plaintiff.  The  next  class  of  cases  to  which  the  rule  applies 
is  where  the  defendant  contracts  a  debt  directly  with  the 
plaintiff,  which  he  agrees  to  pay  by  paying  a  third  party's 
debt  to  the  plaintiff.  In  most  cases  under  the  statute,  this 
debt  arises  from  the  plaintiff  giving  up  directly  or  indirectly 

1  In  the  case  of  Pike  v.  Brown,  7  Gush.  (Mass.)  136,  the  grantee  in  a 
deed  of  land  which  was  subject  to  a  mortgage  verbally  agreed  to  pay  the 
interest  on  the  mortgage  debt  as  it  became  due.  He  failed  to  do  so,  and  the 
grantor,  having  paid  it  himself,  was  held  entitled  to  recover  the  amount 
from  the  grantee  in  assumpsit.  The  court  said:  "  The  substance  of  the 
contract  with  the  plaintiff  was  on  a  consideration  moving  from  him,  to 
pay  his  debt,  for  his  benefit,  and  to  exonerate  him,  and  was  no  less  a 
direct  promise  to  the  plaintiff,  because,  in  the  performance  of  it,  it 
would  satisfy  a  debt  due  to  another."  See  this  case  cited  with  approval 
in  Clapp  v.  Lawton,  31  Conn.  95.  But  according  to  Furbish  v.  Goodnow, 
if  the  grantee's  promise  had  been  communicated  to  the  mortgage  cred- 
itor, and  lie  had  sued  the  grantee  for  the  amount  of  the  interest,  he  could 
not  have  recovered.  Again  it  is  settled  in  Massachusetts  that  a  verbal 
promise  to  accept  a  bill  of  exchange  is  binding  (Grant  v.  Shaw,  16  Mass. 
311).  But  this  is  a  promise  to  pay  the  debt  of  a  third  party  to  the 
drawer  of  the  draft,  and  is  only  valid  without  writing  because  the  defend- 
ant, being  indebted  to  the  third  party,  agrees  to  pay  his  own  debt  by 
paying  that  third  party's  debt  to  the  plaintiff.  See  ante,  §  172. 


CH.   X.]  GUARANTIES.  285 

to  the  defendant  some  lien  or  security  or  other  advantage  for 
securing  or  recovering  the  debt  owing  to  the  plaintiff  by  the 
third  party.1  Those  cases  in  which  the  giving  up  of  such 
lien  or  security  or  advantage  by  the  plaintiff,  though  not  to 
the  defendant  directly  or  indirectly,  has  been  held  sufficient 
to  take  the  defendant's  promise  out  of  the  statute,  are  opposed 
to  the  clear  current  of  later  and  better  considered  cases,  and 
must  be  rejected  as  not  law.  Where  the  lien  or  security  or 
other  advantage  is  given  up  directly  or  indirectly  to  the 
defendant,  it  is  really  a  purchase  of  it  by  him.  But  it  is 
not  true  as  a  general  proposition  that  every  transfer  of  value 
from  the  plaintiff  to  the  defendant  prevents  the  statute  from 
applying  to  the  defendant's  promise,  in  consideration  of  such 
transfer  of  value,  to  pay  to  the  plaintiff  the  amount  owing  to 
him  by  a  third  party.  The  mere  passing  of  a  new  and  inde- 
pendent consideration  between  the  plaintiff  and  the  defend- 
ant does  not  take  the  case  out  of  the  operation  of  the  statute ; 
and  so  far  as  some  of  the  decisions  depend  upon  the  con- 
trary, they  cannot  be  regarded  as  law.2  Every  contract  of 
guaranty  requires  a  consideration*  moving  from  the  party  to 
whom  the  guaranty  is  given;  there  can  be  no  sensible  distinc- 
tion made  between  "new  and  independent"  considerations 
and  any  other  considerations;  and  the  general  proposition 
that  "  a  new  and  independent  consideration  moving  between 
the  parties  to  the  contract  of  guaranty  "  takes  it  out  of  the 
statute,  simply  nullifies  the  statute.  The  distinction  is 
between  a  merely  valid  consideration  for  the  defendant's 
promise  of  guaranty,  and  that  transfer  of  value  which  creates 
an  original  obligation  on  the  part  of  the  defendant,  the 
measure  of  which  is,  by  the  agreement  of  the  parties,  the 
defendant's  payment  of  the  third  party's  debt.  To  a  third 
class  belong  the  cases  in  which  the  property  of  the  third 

1  Ante,  §§  200  a-205,  and  §  214  c  ;  Small  i>.  Schaefer,  24  Md.  143. 

2  Ante,  §  212;  Fullam  t>.   Adams,  37  Vt.  391;  Manle  v.  Bncknell,  50 
Pa.  St.  39;  Kelsey  v.  Hibbs,  13  Ohio  St.  340;  Dillaby  v.  Wilcox,  60  Conn. 
71 ;  Warner  v.  TVilloughby,  60  Conn.  468. 


286  STATUTE    OF  FRAUDS.  [CH.    X. 

party  is  put  into  the  hands  of  the  defendant  for  the  purpose 
of  paying,  out  of  the  proceeds  thereof,  the  third  party's  debt 
to  the  plaintiff.  These  are  cases  of  obligation  by  the  defend- 
ant as  a  trustee  to  make  such  payment,  and  it  is  that  personal 
obligation  which  the  plaintiff  seeks  to  enforce,  and  his  right 
of  action  is  not  affected  by  the  statute.1 

1  Ante,  §  206;  Stoudt  v.  Hine,  45  Pa.  St.  30;  Woodward  v.  Wilcox, 
27  Ind.  207.  In  one  of  the  most  intelligent  and  instructive  opinions  that 
have  been  delivered  upon  this  subject  of  guaranties  under  the  Statute  of 
Frauds  (Fullam  v.  Adams,  37  Vt.  397),  Chief  Justice  Poland  treats  the 
cases  of  promises  to  pay  the  debt  of  another  who  still  remains  liable,  as 
all  reducible  to  the  one  principle  that  the  promisor  is  liable  because  by 
the  arrangement  he  becomes  the  holder  of  a  fund  or  security  which  is  ap- 
propriated to  the  payment  of  the  debt,  and  clothed  with  a  duty  or  trust 
in  respect  thereto  which  the  law  will  enforce  in  favor  of  the  party  to  whom 
the  promise  is  made.  He  says,  "  It  has  been  often  decided,  that  where 
the  purchaser  of  property  promises  to  pay  the  price  to  a  creditor  of  the 
vendor,  such  promise  is  binding,  though  not  in  writing,  and  the  vendor 
still  remains  liable  for  the  debt.  .  .  .  And  where  a  debtor  transfers  funds 
or  property  to  another  for  the  purpose  of  paying  his  debt,  and  the  person 
thus  holding  the  debtor's  funds  or  property  promises  the  creditor  to  pay 
his  debt,  such  promise  is  held  good,  though  not  in  writing.  .  .  .  We 
apprehend  the  true  principle  why  the  promise  to  the  creditor  is  valid 
without  writing,  is  the  same  in  both  these  classes  of  cases.  In  both,  the 
party  making  the  promise,  holds  the  funds  of  the  debtor  for  the  purpose  of 
paying  his  dent,  and  as  between  him  and  the  debtor,  it  is  his  duty  to  pay 
the  debt,  so  that  when  he  promises  the  creditor  to  pay  it,  in  substance  he 
promises  to  pay  his  own  debt,  and  not  that  of  another ;  and  though  the  debtor 
still  remains  liable  for  the  debt,  his  real  relation  is  rather  that  of  a  surety 
for  the  party  whose  duty  it  is,  and  who  has  promised  to  pay  his  debt, 
than  of  a  principal  for  whom  the  other  has  become  surety  or  guarantor. 
He  holds  a  fund  in  trust,  under  a  duty  to  pay  it  to  the  creditor,  and  he 
makes  an  express  promise  to  perform  it.  ...  The  cases  which  decide 
that  where  a  creditor  holds  a  security  for  his  debt,  and  surrenders  it  to  a 
third  person,  for  his  own  benefit,  upon  his  promise  to  be  answerable  for 
the  debt,  stand  really  upon  the  same  substantial  principle." 


CH.   XL]      AGREEMENTS   IN   CONSIDERATION   OF  MARRIAGE.        287 


CHAPTER  XI. 

AGREEMENTS   IN   CONSIDERATION   OP   MARRIAGE. 

§  215.  THIS  section  of  the  statute  has  been  most  frequently 
applied  to  what  are  commonly  known  as  marriage  settlements ; 
and  it  is  settled  that  any  promise,  made  since  the  enactment 
of  the  statute,  to  give  a  portion  to  or  settle  property  upon, 
either  of  the  parties  to  an  intended  marriage,  as  an  induce- 
ment to  and  consideration  for  entering  into  it,  is  incapable 
of  supporting  an  action  at  law  for  damages  for  non-perform- 
ance, or  a  suit  in  equity  for  specific  execution,  unless  there 
be  a  memorandum  thereof  in  writing  signed  by  the  party  to 
be  charged  upon  the  promise.1 

§  215  a.  It  appears  to  have  been  once  considered  that  the 
statute  applied  only  to  these  cases  of  marriage  settlements 
properly  so  called,2  but  it  is  now  settled,  at  least  by  Ameri- 
can authority,  that  it  is  not  so  limited,  but  extends  to  any 
agreement  to  undertake  any  duty  or  office  in  consideration  of 
another's  contracting  a  marriage,  whether  with  the  promisor 
or  with  a  third  person.3  The  sole  exception  found  to  this 

1  Harrison  v.  Cage,  1  Ld.  Raym.  386;  Salkeld  24;  5  Mod.  411;  Cork 
v.  Baker,  Stra.  34;  Clark  v.  Pendleton,  20  Conn.  495;  Dunn  v.  Tharp, 
4  Ired.  (N.  C.)  Eq.  7;  Wilbur  v.  Johnson,  58  Mo.  600.     In  South  Caro- 
lina, where  the  English  statute  has  been  literally  re-enacted,  it  has  been 
said  in  chancery  (Hatcher  v.  Robertson,  4  Strob.  Eq.  170)  that  an  ante- 
nuptial agreement  founded  on  the  consideration  of  marriage,  though  rest- 
ing on  parol  merely,  would  be  enforced,  provided  it  was  satisfactorily 
established  by  proof;  but  the  case  did  not  require  the  remark,  and  would 
seem  to  have  been  incorrectly  reported. 

2  Harrison  v.  Cage,  1  Ld.  Raym.  386. 

8  Brenner  v  Crenner,  48  Tnd.  262 ;  Henry  r.  Henry,  27  Ohio  St.  121 ; 
In  re  Willoughby,  11  Paige  (N.  Y.)  Ch.  257;  Dygert  v.  Remerschnider, 
32  N.  Y.  629;  Brown  ».  Conger,  8  Hun  (N.  Y.)  625;  and  see  Jorden  t>. 


288  STATUTE   OF  FRAUDS.  [CH.    XI. 

general  rule  is  that  mutual  promises  to  marry  are  not  covered 
by  the  statute.1 

§  215  b.  The  distinction  should  be  carefully  noted  between 
agreements  in  consideration  of  marriage,  and  agreements, 
which  are  merely  in  expectation  or  contemplation  of  marriage. 
In  order  that  the  contract  shall  be  within  the  statute,  mar- 
riage or  the  promise  of  marriage  must  have  been  its  consid- 
eration or  inducement.  In  a  case  where  an  intestate,  about 
seven  years  before  his  marriage,  borrowed  money  from  the 
person  who  afterward  became  his  wife,  and  in  an  interview 
with  her  shortly  before  their  marriage,  promised  her  that  if 
she  would  not  enforce  payment  of  the  notes,  they  should 
remain  good  and  collectible  against  his  estate,  and  she  re- 
tained the  notes  during  the  coverture  and  after  his  death,  it 
was  held  that,  although  the  promise  of  the  husband  was  made 
in  contemplation  of  marriage,  it  was  made  in  consideration 
of  forbearance  to  collect  the  notes,  and  that  after  his  death  a 
claim  for  their  amount  by  his  wife  was  properly  allowed 
against  his  estate,  and  that  his  agreement  was  not  within 
the  Statute  of  Frauds,  and  could  be  proved  without  writing.2 

§  216.  The  marriage  is  the  consideration,  a  legal  and  suffi- 

Money  5  H  L.,  C.  207,  per  Cranworth,  L.  C.;  Adams  v.  Adams,  17 
Oregon  247;  Chase  v.  Fitz,  132  Mass.  359.  In  Mallory  v.  Mallory,  92 
Ky.  316,  an  antenuptial  contract  stipulating  that  neither  party  should 
have  any  interest  in  the  property  of  the  other  by  reason  of  the  marriage, 
was  covered  by  the  Statute  of  Frauds.  The  court  say,  "  An  antenuptial 
contract  is  one  by  which  the  parties  agree  to  anticipate  the  general  law 
controlling  the  marital  relations,  and  make  a  law  in  that  regard  to  suit 
themselves,  the  consideration  of  the  contract  being  the  agreement  to 
marry  each  other."  And  see  White  v.  Bigelow,  154  Mass.  593. 

1  It  was  held  otherwise  shortly  after  the  enactment  of  the  statute. 
Philpot  v.  Walcot,  Skinner  24;  Freeman  541;  3  Lev.  65.     But  the  rule 
was  reversed  in  the  later  English  cases,  cited  in  the  note  to  the  preceding 
section.     See  also  Short  u.  Stotts,  58  Ind.  29;   Ullman  v  Meyer,  10  Fed. 
Rep.  241.     That  all  promises  in  consideration  of  marriage  are  required  to 
be  in  writing,  if  by  their  terms  not  to  be  performed  within  or.e  year,  see 
§  272,  post. 

2  Riley  v.  Riley,  25  Conn.  154.     And  see  Child  v.  Pearl,  43  Vt.  224; 
Rainbolt  r.  East,  58  Ind.  538. 


CH.    XI.]      AGREEMENTS  IN   CONSIDERATION   OF   MARRIAGE.       289 

cient  consideration,  for  the  defendant's  promise,  and  one 
which,  it  is  said,  courts  regard  with  especial  favor,  as  of  a 
most  meritorious  character.1  In  a  case  in  Maryland,  where 
it  was  held  that  an  agreement  made  by  a  father  with  his 
daughter,  in  consideration  of  her  marriage,  by  way  of  advance- 
ment, and  as  a  marriage  endowment,  and  followed  by  her 
marriage  as  then  contemplated,  could  not  be  revoked  by  the 
father,  Martin,  J.,  delivering  the  judgment  of  the  Court  of 
Appeals,  said  that  the  daughter  was  regarded  as  a  purchaser, 
as  much  so  as  if  she  had  paid  for  the  property  an  adequate 
pecuniary  consideration,  and  that  the  consummation  of  the 
marriage  was  to  be  considered  as  the  payment  of  the  purchase- 
money.2 

§  216  a.  The  marriage  is  also  an  acceptance  of  the  promise. 
In  a  case  in  the  Irish  Chancery,  a  promise  was  made  to  give 
a  marriage  portion  to  a  young  lady,  and  upon  its  being  com- 
municated by  letter  from  the  promisor's  agent  to  the  intended 
husband,  he  expressed  his  desire  to  have  the  promisor's  bond 
to  the  same  effect,  but  it  was  not  given,  and  nothing  further 
took  place  until  the  celebration  of  the  marriage.  It  was 
urged  that  the  promise  had  not  been  accepted,  but  Lord 
Chancellor  Sugden  said  that  "no  acceptance  could  be  more 
solemn  than  the  fact  of  marrying  the  lady."3  Where  mar- 
riage follows  upon  the  agreement,  a  distinct  and  positive  dis- 
sent from  the  proposition  of  settlement  would  be  required  to 
be  shown,  in  order  to  avert  a  decree  of  specific  execution 
according  to  its  terms.4 

§  217.  The  marriage  must,  however,  have  been  celebrated 
upon  the  strength  of  the  promise  as  any  other  consideration 
must  be  connected  with  the  engagement  it  is  to  support.  In 

1  See  the  remark  of  Lord  Chancellor  Sugden,  in  Greene  v.  Cramer, 
2  Con.  &  L.  54;  s.  c.  nom   Saunders  r.  Cramer,  3  Dru  &  W.  87;    also 
Dugan  v.  Gittings,  3  Gill  (Md.)  138. 

2  Dusran  v.  Gittings,  3  Gill   138.     But  see  Brown  v.  Conger,  8  Hun 
(N.  Y,)  625. 

8  Greene  ».  Cramer,  2  Con.  &  L.  54. 
4  Luders  v.  Anstey,  4  Ves.  501. 

19 


290  STATUTE    OF   FRAUDS.  [CH.    XI. 

Ayliffe  v.  Tracy,  a  father  had  written  a  letter  to  his  daughter, 
agreeing  to  give  her  £3,000  portion,  but  this  letter  was  not 
shown  to  the  plaintiff,  who  became  her  husband,  and  after- 
wards brought  his  bill  to  have  the  promise  enforced.  Lord 
Chancellor  Macclesfield  dismissed  the  bill,  remarking  that 
there  was  here  no  ingredient  of  equity,  and  that  the  husband 
could  not  be  supposed  to  have  married  in  confidence  of  the 
letter.1  In  point  of  fact  the  letter,  as  another  report  of  the 
same  case2  shows,  referred  to  a  previous  verbal  promise  as 
having  been  made  to  the  husband ;  so  that  it  would  seem  the 
case  did  not  necessarily  present  the  point  which  was  deter- 
mined, and  that  the  decree  should  rather  have  been  the  other 
way,  the  verbal  promise  to  the  husband  being  ratified  and 
perfected  by  the  subsequent  written  acknowledgment  to  the 
daughter.  But  there  can  hardly  be  a  doubt  of  the  accuracy 
of  the  principle  indicated  by  his  Lordship,  as  applied  in  a 
court  of  equity,  and  it  is  difficult  to  see  why  it  should  not 
equally  prevail  in  an  action  at  law. 

§  218.  It  is  said  by  an  eminent  writer,  that  a  promise  by 
letter  (or  in  writing  generally)  will  be  specifically  enforced, 
although  the  person  making  it  afterward  dissent  from  the 
marriage  and  declare  he  will  give  the  parties  nothing.3  Such 
a  rule  broadly  stated,  seems  to  be  not  altogether  reasonable, 
there  being  nothing  in  the  language  of  the  statute,  nor  in  the 
nature  of  such  contracts  themselves,  to  prevent  them  from 
being  revocable  at  any  time  before  they  have  been  acted  on. 
In  the  case  cited  by  the  writer  in  question,  Wanchford  v. 
Fotherley,  the  treaty  for  the  settlement,  upon  the  basis  of  a 
letter  of  the  lady's  father,  depended  long,  and  meanwhile  the 
young  couple  married.  The  father,  before  they  went  to 
church,  revoked  his  promise,  and  said  he  would  give  them 
nothing;  but  this  the  Lord  Keeper  Somers  said  he  looked 
upon  as  nothing  "after  the  young  people's  affections  were 

i  Ayliffe  v.  Tracy,  2  P.  Wms.  65 

8  In  9  Mod.  3.     See  Atherley  on  Marriage  Settlements,  82. 

8  Atherlev,  Marr.  Sett.  84. 


CH.    XI.]      AGREEMENTS   IN   CONSIDERATION   OF  MARRIAGE.  '    291 

engaged ; "  regarding  such  a  tardy  revocation,  apparently,  in 
the  light  of  a  fraud  upon  those  who,  reposing  upon  the 
promise,  had  permitted  their  relations  to  each  other  to  suffer 
an  entire  and  irrevocable  change.1 

§  219.  It  is  hardly  necessary,  nor,  if  it  were  necessary, 
would  it  be  altogether  practicable,  to  show  with  much  pre- 
cision what  will  in  point  of  substance  be  deemed  to  amount 
to  contracts  to  bestow  a  portion  in  consideration  of  marriage ; 
the  ordinary  rules  of  interpretation  of  contracts  applying  to 
them  as  to  any  others.  The  promise  must  of  course  be  abso- 
lute in  its  terms,  in  order  to  be  binding;  even  though  it  be 
reduced  to  writing.  This  is  illustrated  in  the  case  of  Randall 
v.  Morgan,  where  the  lady's  father,  in  a  letter  to  the  intended 
husband,  says:  "The  addition  of  .£1,000  3  per  cent  stock  is 
not  sufficient  to  induce  me  to  enter  into  a  deed  of  settle- 
ment. Whether  Mary  [the  daughter]  remains  single  or 
marries,  I  shall  allow  her  the  interest  of  £2,000  at  four  per- 
cent; if  the  latter,  1  may  bind  myself  to  do  it,  and  to  pay 
the  principal  at  her  decease  to  her  and  her  heirs."  Sir  Wil- 
liam Grant,  Master  of  the  Rolls,  said  there  were  passages  in 
the  letter  which,  if  they  were  detached  from  it,  and  could  be 
considered  by  themselves,  would  amount  to  an  agreement;  but 
that  there  was  no  agreement  whatever  upon  the  whole  letter 
taken  together;  that  it  was  clear  that  the  father  meant  to 
reserve  it  entirely  in  his  own  power  to  bind  himself  or  not 
after  the  marriage  had  taken  place,  and  that  the  expressions 


1  Wanchford  v.  Fotherley,  Freem.  Ch.  201.  The  Reporter  adds  in  a 
note  that  this  decree  was  affirmed  on  appeal  in  the  House  of  Lords.  In 
D'Aguilar  v.  Drinkwater,  2  Ves.  &  B.  234,  the  question  was  whether  a 
marriage  had  taken  place  with  consent  of  trustees.  Sir  William  Grant's 
language  illustrates  the  position  of  the  court  in  the  case  just  cited.  He 
says  that  after  a  mutual  attachment  had  been  suffered  to  grow  up  under 
the  sanction  of  the  trustees,  it  would  be  somewhat  late  to  state  terms  and 
conditions  on  which  a  marriage  between  the  parties  should  take  place,  as 
they  must  either  have  done  violence  to  their  affections,  or  have  submitted 
to  any  terms,  however  arbitrary  and  unreasonable,  that  the  trustees  might 
choose  to  dictate. 


292  STATUTE   OF   FEAUDS.  [CH.   XI. 

used  showed  clearly  that  he  did  not  intend  to  bind  himself 
then. 1 

§  220.  It  seems  to  have  been  considered  in  an  early  case, 
that  satisfaction  with  the  proposed  marriage  on  the  part  of 
the  person  promising  to  give  the  portion,  was  in  some  degree 
essential  to  such  contracts.  An  uncle,  by  a  letter  to  his 
niece,  promised  her  £1,000  as  a  portion,  but  dissuaded  her 
from  the  match ;  and,  though  he  was  afterwards  present  at  the 
ceremony  and  gave  her  away,  the  court  refused  to  decree  the 
payment,  but  left  the  husband  to  his  action  at  law.2  The 
soundness  of  such  a  doctrine  is  doubted  by  Mr.  Atherley,3 
and  perhaps,  as  the  report  does  not  show  the  grounds  of  the 
decision,  the  case  may  be  regarded  as  not  determining  it. 
Where  the  promise  is  made  upon  condition  that  the  particular 
marriage  in  question  should  not  takfe  place,  very  clearly  no 
relief  either  at  law  or  in  equity  could  be  had  upon  it  on  con- 
sideration of  the  marriage.  In  Montgomery  v.  Reilly,  finally 
decided  in  the  House  of  Lords,  there  was  a  letter  by  the 
father,  upon  which  the  husband  and  wife  relied,  and  in  which 
he  says,  "I  can  never  be  reconciled  to  the  marriage,"  etc.  ; 
then  he  proceeds  to  speak  of  the  arrangement  between  him- 
self and  the  family,  stating  what  he  intended  to  give  to  each 
of  his  children,  and  says :  "  This,  I  think,  is  an  abstract  of 
the  agreement,  and  when  put  into  the  form  of  a  deed,  if  as- 
sented to  by  them,  I  am  ready  to  execute  at  any  time,"  but 
adds,  "  1  will  not  entangle  myself  with  Mr.  J.  R. "  [the  hus- 
band]. "If  this  match  goes  on,  I  will  neither  meddle  nor 
make  with  [make  nor  meddle  with]  it  or  their  settlements." 
Lord  Eldon  advised  their  Lordships  that  there  would  be  a 
difficulty  not  easy  to  be  overcome  in  enforcing  the  alleged 
settlement,  if  the  question  had  to  be  determined  alone  upon 
the  letter,  considering  what  the  law  of  the  land  required  to 

1  Randall  v.  Morgan,  12  Ves.  67. 

2  Douglas  v.  Vincent,  2  Vern.  202.     But  compare  Wanchford  v.  Foth- 
erley,  Freem.  Ch.  201. 

s  Marr.  Sett.  84. 


OH.    XI.]      AGREEMENTS   IN   CONSIDERATION   OF   MARRIAGE.       293 

give  effect  to  a  marriage  agreement.  But  in  view  of  the  other 
circumstances  in  the  case,  he  advised  them  that  the  agree- 
ment was  one  which  in  equity  ought  to  be  enforced.1 

§  221.  In  a  case  in  Virginia,  the  question  arose  as  to  the 
time  for  performance  of  a  contract  for  a  marriage  settlement, 
which  was  in  that  respect  indefinite.  The  promise  was,  that 
if  the  plaintiff  married  the  defendant's  daughter,  the  defend- 
ant would  endeavor  to  do  her  equal  justice  with  the  rest  of 
his  daughters,  as  fast  as  it  was  in  his  power  with  conven- 
ience; and  it  was  held  that  he  had  not  his  lifetime  to  perform 
the  promise  in,  but,  in  a  reasonable  time  after  the  marriage 
(taking  into  consideration  his  property  and  other  circum- 
stances), was  bound  to  make  an  advancement  to  the  plaintiff 
and  his  wife  equal  to  the  largest  made  to  any  of  his  daughters.2 

§  222.  In  what  form  the  written  contract  which  shall  satisfy 
the  statute  is  to  be,  as,  for  instance,  whether  a  letter  or  other 
informal  writing  is  sufficient,  and  when  such  writing  is  to  be 
deemed  properly  executed,  as  also  the  general  rule  as  to  what 
should  be  contained  in  the  writing,  and  to  what  extent  parol 
evidence  may  be  admitted  to  explain  or  assist  it,  are  matters 
which  can  probably  be  discussed  to  more  advantage  when  we 
come  to  the  consideration  of  the  memorandum  in  writing 
which  the  fourth  section  of  the  statute  requires  to  be  pro- 
duced in  all  cases  of  contracts  falling  within  its  provisions.3 
And  in  like  manner,  and  for  the  sake  of  obtaining  a  more 
systematic  view  of  the  subject,  it  is  proposed  to  defer  to  the 
same  time  all  questions  as  to  the  effect  which  any  acts  of 
part-performance,  or  other  equitable  considerations,  may  have 
with  courts  of  equity,  in  inducing  them  to  direct  specific  exe- 
cution of  a  verbal  contract  made  upon  consideration  of  mar- 
riage, notwithstanding  the  absence  of  the  writing  required  by 
the  statute.4  There  will  remain,  therefore,  only  the  question 

1  Montgomery  v.  Reilly,  1  Bligh,  364. 

3  Chichester  v.  Vass,  1  Munf.  98. 

«  See  post,  Chapters  XVII.  and  XVIII. 

4  See  post,  Chapter  XIX. 


294  STATUTE    OF    FKAUDS.  [CH.    XI 

how  far  a  writing  or  settlement  made  after  marriage,  upon  the 
basis  of  an  antenuptial  verbal  promise,  will  be  binding  and 
valid ;  and  the  discussion  of  it  will  conclude  this  chapter. 

§  223.  The  case  of  Dundas  v.  Dutens  is  commonly  cited 
as  having  determined  that  a  postnuptial  settlement,  reciting 
the  antenuptial  verbal  contract,  was  good  against  intervening 
creditors.  Lord  Thurlow  there  strongly  expressed  his  opinion 
that  it  was,  and  dismissed  the  creditors'  bill  to  set  such  a 
settlement  aside.  It  also  appears,  however,  that  he  regarded 
the  suit  as  part  of  a  combination  between  the  husband,  the 
creditors,  and  the  solicitor,  to  defraud  the  children:  a  cir- 
cumstance which  certainly  takes  from  the  weight  of  the  case 
as  a  decision  upon  the  legal  question  of  the  validity  of  the 
settlement.1  Lord  Thurlow's  opinion  was  referred  to  by 
Lord  Ellenborough  with  apparent  approbation,  in  the  subse- 
quent case  of  Shaw  v.  Jakeman,2but  he  did  not  find  it  neces- 
sary to  apply  it  decisively.  Afterwards  in  Randall  v.  Morgan, 
Sir  William  Grant,  M.  R.,  also  referred  to  it,  but  as  a  dictum 
only,  and  said  that  he  was  not  aware  that  the  point  had  ever 
been  decided ;  and  at  the  same  time  he  expressed  a  strong 
doubt  whether  a  writing  after  marriage  would  set  up  an  ante- 
nuptial verbal  promise,  even  as  between  parties ;  but  it  was 
not  necessary  to  decide,  nor  did  he  decide,  either  question.3 
Still  later,  in  the  case  of  Battersbee  v.  Farrington.  Sir  Thomas 
Plumer,  M.  R.,  remarked  that  it  would  be  difficult  to  main- 
tain that  a  recital  in  a  settlement  after  marriage  was  evi- 
dence, as  against  creditors,  of  articles  made  before  marriage. 
"Such  a  doctrine,"  he  said,  "would  give  to  every  trader  a 
power  of  excluding  his  creditors  by  a  recital  in  a  deed  to 
which  they  are  not  parties."4  But  even  here  the  point  was 
claims  not  directly  raised,  as  there  were  in  fact  no  intervening 
of  creditors  in  the  case,  and  no  decision  was  made  upon 

1  Dundas  v.  Dutens,  1  Ves.  Jr.  196;  s.  c.  2  Cox,  Ch.  235. 

2  Shaw  v.  Jakeman,  4  East  201. 

8  Randall  v.  Morgan,  12  Ves.  67. 

4  Battersbee  v.  Farrington,  1  Swanst.  113. 


CH.    XI.}      AGREEMENTS  IN   CONSIDERATION   OF  MARRIAGE.       295 

it.  The  tendency,  however,  of  the  English  Courts  appears, 
from  the  course  of  these  cases,  to  be  against  upholding  the 
validity  of  a  settlement  after  marriage,  although  it  recite  an 
antenuptial  verbal  agreement  in  consideration  of  marriage, 
when  intermediate  creditors  are  to  be  cut  off  by  it.1  In  our 
own  country  there  is  less  uncertainty  upon  the  point.  Chan- 
cellor Kent,  in  the  case  of  Reade  v.  Livingston,  reviews  all 
the  authorities  which  favor  or  appear  to  favor  the  validity  of 
such  a  settlement,  and  doubts  much  whether  it  can  be  upheld 
by  the  mere  force  of  a  recital  of  the  antenuptial  verbal  con- 
tract, and  he  inclines  to  think  that  the  weight  of  authority, 
as  well  as  the  reason  and  policy  of  the  case,  is  against  it. 
This  opinion  has  been  much  respected  in  our  courts,  and 
subsequent  American  decisions  in  various  States  have  estab- 
lished the  doctrine,  that  as  against  creditors,  such  a  settle- 
ment has  no  force.2 

§  224.   The  principle  upon  which  this  doctrine  is  sustained 

1  The  question  may  now  be  considered  definitely  settled  by  the  case  of 
Warden  v.  Jones,  2  De  G.  &  J.  76  (affirming  the  decision  of  Sir  John 
Romilly,  M.  II.,  reported  in  23  Beavan  487),  where  Lord  Cran worth  said 
that  the  settlement  in  the  case,  even  if  it  had  contained  a  statement  that 
it  was  made  iu  pursuance  of  a  previous  parol  antenuptial  agreement, 
would  be  void  against  creditors.     See  also  Spicer  v.  Spicer,  24  Beav.  367, 
and  the  early  cases  of  Lavender  v.  Blakstone,  2  Lev.  147,  and  Sir  Ralph 
Bovy's  case,  1  Vent.  193.     Both  Mr.  Atherley  (Marr.    Sett.   149)  and 
Judge  Story  (Eq.  Jur.  §  374)  express  their  assent  to  the  doctrine  that 
such  a  settlement  is  invalid. 

2  Reade  v.  Livingston,  3  Johns.  (N.  Y.)  Ch.  481;  Winn  ».  Albert,  2 
Md.  Ch.  Dec.  169,  affirmed  on  appeal,  5  Md.  66;  Izard  v.  Izard,  Bailey 
(S.  C.)  Eq.  228;  Andrews  v.  Jones,  10  Ala.  400;  Blow  v.  Maynard,  and 
Lawrence  v.  Blow,  2  Leigh  (Va.)  29;  Smith  v.  Greer,  3  Humph.  (Tenn.) 
118;  Wood  v.  Savage,  2  Doug.  (Mich.)  316;  Davidson  v.  Graves,  Riley 
(S.  C.)  Eq.  219  ;  Borst  y.  Corey,  16  Barb.  (N.  Y.)  136;  Story  Eq.  Jur.  ed. 
1861,  §  374.     The  Court  of  Chancery  in  New  Jersey,  however,  have  said 
that  where  an  antenuptial   settlement  was  fairly  shown,  they  would  be 
inclined  to  give  validity  to  the  settlement  in  pursuance  of  it,  even  against 
creditors ;  but  they  did  not  consider  a  recital  in  a  postnuptial  deed  of 
settlement,  nor  declarations  of  a  husband  made  during  coverture  and 
shortly  before  the  conveyance  by  the  wife  and  himself  to  his  son.  as  satis- 
factory proof.     Satterthwaite  v.  Emley,  3  Green,  Ch.  489,  per  Ilaines,  C.; 
Carter  v.  Worthington,  82  Ala.  334. 


296  STATUTE  OF  FRAUDS.  [CH.  XL 

requires  to  be  carefully  noticed.  In  Randall  v.  Morgan,  as 
has  been  seen,  it  was  intimated  that,  even  as  between  parties, 
a  writing  made  subsequently  to  the  marriage  would  be  of  no 
effect  to  set  up  an  antenuptial  verbal  promise  of  a  settle- 
ment; and  the  reason  given  is,  that  otherwise  the  construc- 
tion of  the  fourth  section  of  the  statute  would  be  just  the 
same  as  the  seventh,  which  requires  only,  in  the  case  of  a 
trust  of  lands,  that  it  be  manifested  or  proved  by  writing; 
that  upon  that  clause,  it  is  not  necessary  that  a  trust  be  con- 
stituted by  writing,  but  that  it  is  sufficient  to  show  by  writ- 
ten evidence  the  existence  of  the  trust.1  The  weight  of 
authority,  however,  seems  decidedly  to  establish  that  a  set- 
tlement or  other  writing  made  after  marriage  and  recogniz- 
ing an  antenuptial  verbal  contract,  is  binding  upon  the 
parties.2  Nor  does  it  appear  that  any  violence  is  thereby 
done  to  the  spirit  of  the  fourth  section.  The  memorandum 
required  by  that  section  need  not  be  contemporaneous  with 
the  making  of  the  contract;  it  is  only  necessary  that  the  evi- 
dence of  the  contract  be  put  in  that  form,  before  any  action 
can  be  maintained  upon  it.3  Then,  it  becomes  a  binding 
agreement;  and  it  seems  to  be  no  reason  for  holding  other- 
wise in  cases  of  marriage  contracts,  that  the  marriage  has 
intervened ;  for  that  is,  so  to  speak,  but  the  payment  of  the 
consideration.  No  relief  is  sought  or  claim  founded  upon  the 
contract,  until  after  it  is  perfected  by  being  put  in  writing. 
But  when  the  rights  of  creditors  accruing  in  the  meantime 
are  concerned,  the  case  is  different.  The  writing  made  after 
marriage,  or  the  recital  of  the  antenuptial  contract  in  the 
postnuptial  settlement,  can  have  no  relation  back  to  the  verbal 
contract  so  as  to  make  it  effective  as  of  that  date,  if  the  rights 
of  third  parties  have  meantime  intervened;4  and  consequently 

1  Randall  v.  Morgan,  12  Ves.  67. 

2  Montacute  v.  Maxwell,  1  P.  Wms.  618;  Stra.  236;    Hammersly  ». 
De  Biel,  12  Clark  &  F.  45;  Argenbright  v.  Campbell,  3  Hen.  &  M.  (Va.) 
144. 

3  See  post,  §  348. 

4  See  supra,  §  233. 


CB.    XI.]      AGREEMENTS   IN   CONSIDERATION   OF  MARRIAGE.        297 

the  settlement  upon  the  basis  of  that  verbal  contract  must  be 
regarded  as  purely  voluntary,  and  cannot  affect  pre-existing 
rights  against  the  property  conveyed.1 

§  224  a.  In  the  case  of  Cooper  v.  Wormald,  one  S.  C.  by 
her  father's  will  had  a  life  estate  in  the  real  and  personal 
estate  left  by  her  father,  held  by  trustees,  with  a  remainder 
to  his  son,  the  plaintiff.  S.  C.,  being  about  to  marry  the 
defendant,  agreed  by  parol  with  him  to  transfer  a  certain 
sum,  standing  in  her  own  name,  in  the  bank,  to  the  same 
trustees  in  trust  for  herself  for  life,  and  in  default  of  appoint- 
ment, for  the  defendant  for  life,  with  remainder  to  her  chil- 
dren. The  deed  of  trust  was,  by  mistake,  not  executed  till 
after  the  marriage,  though  the  transfer  of  the  property,  which 
was  in  the  shape  of  securities,  was  made  before.  The  bill 
was  brought,  after  S.  C.  's  death,  against  her  husband  to  have 
him  declared  trustee  of  the  property  in  favor  of  the  plaintiff, 
executor  of  the  father.  It  alleged  that  the  money  was  part 
of  the  testator's  estate,  and  subject  to  the  trusts  of  the  will. 
The  defendant  insisted  that  the  settlement,  being  made  in 
good  faith  and  for  value,  should  prevail,  and  this  was  the 
view  taken  by  Romilly,  M.  R..  who  held  that  although  the 
trustees  might  be  guilty  of  and  liable  for  a  breach  of  trust, 
yet  that  in  respect  of  the  money  itself,  there  were  other  per- 
sons who  had  become  entitled  for  valuable  consideration,  and 
whose  rights  were  not  to  be  set  aside.2  He  took  pains,  how- 
ever, to  point  out  that  his  decision  was  not  at  all  intended  to 
question  the  rule  just  stated  and  discussed. 

1  A  very  able  discussion  of  this  point  will  be  found  in  the  opinion  of 
the  Maryland  Court  of  Appeals,  in  Albert  ».  Winn,  5  Md.  66. 

2  Cooper  p.  Wormald,  27  Beav.  266. 


298  STATUTE  OF  FRAUDS.  [CH.  XIL 


CHAPTER  XII. 

CONTRACTS   FOR  LAND. 

§  225.  OF  the  various  topics  embraced  by  the  provisions 
of  the  Statute  of  Frauds,  nothing  seems  to  have  attracted 
such  anxious  attention  on  the  part  of  its  framers  as  the 
whole  class  of  transactions  affecting  the  title  to  real  estate. 
The  expanded  phraseology  of  the  fourth  section  in  this 
respect,  although  it  may  not  indeed  appreciably  enlarge  the 
scope  of  the  section,  evinces  this  spirit  very  clearly;  specify- 
ing, as  it  does,  those  lighter  shades  of  interest  which  may 
be  said  merely  to  concern  land.  But  this  general  drift  and 
policy  of  the  statute  may  be  especially  apprehended  by  com- 
paring together  the  several  provisions  bearing  on  this  kind 
of  property.  We  have  already  had  occasion  to  examine  those 
sections  in  which  the  formality  of  a  writing  is  exacted  in  all 
cases  of  the  creation  or  transfer  of  a  legal  title  to  land,  and 
written  evidence  of  all  declarations  of  trusts  or  confidences 
in  land;  and  we  now  find  the  same  watchful  disposition 
guarding  against  the  too  ready  alienation  of  this  important 
species  of  property,  by  denying  any  remedy  upon  a  mere  oral 
contract  for  the  sale  of  it,  unless  proved  by  a  memorandum 
in  writing  signed  by  the  party  to  be  charged  thereby.  In 
view  of  the  fact  that,  in  the  course  of  their  independent 
legislation,  some  of  the  States  have  omitted  one  or  more  of 
these  provisions  while  retaining  others,  it  is  well  to  observe 
how  far  those  sections  which  concern  the  creation  and  trans- 
fer of  interests  in  land  may  be  made  to  supply  the  place  of 
that  which  we  have  now  to  consider.  We  have  already  had 
occasion,  in  introducing  the  subject  of  trusts,  to  notice  the 


CH.   XII.]  CONTRACTS   FOE  LAND.  299 

relation  which  the  seventh  section,  covering  trusts,  bears  to 
that  which  is  now  before  us. 

§  226.  In  Pennsylvania,  where  the  first  three  sections  only 
of  those  of  the  English  statute,  which  relate  to  the  creation 
and  transfer  of  interests  in  land,  have  been  re-enacted,  the 
courts  have  repeatedly  had  occasion  to  deal  with  verbal  con- 
tracts for  the  purchase  or  sale  of  such  interests.  And  although 
there  have  been,  particularly  in  the  more  recent  decisions, 
indications  of  a  disposition  to  consider  the  English  statute, 
including  the  fourth  section,  as  having  some  force,  by  adop- 
tion into  the  common  law  of  the  State,  to  restrain  the  right 
of  action  upon  such  contracts,  the  law  as  it  now  stands  clearly 
allows  that  right.1  But  it  allows  it  for  the  mere  and  narrow 

1  Bell  v.  Andrews,  4  Dall.  152;  Ewing  v.  Tees,  1  Binn.  450 ;  McDowell 
v.  Oyer,  21  Pa.  St.  417;  Kurtz  v.  Cummings,  24  Pa.  St.  35;  Malaun 
r.  Ammon,  1  Grant  123.  In  Pugh  v.  Good,  3  Watts  &  S.  56,  Gibson, 
0.  J.,  said:  "  I  would  hold  the  particular  clause  in  the  fourth  section  of 
the  British  Statute  of  Frauds  to  have  been  extended  here  by  adoption, 
had  not  this  court,  very  inconsistently  I  think,  held  it  otherwise  in  Bell  i>. 
Andrews  [«u/>ra].  As  it  is,  we  must  take  that  clause  with  its  equitable 
exceptions  to  be  part  of  our  peculiar  common  law  adopted  in  analogy  to 
the  British  statute,  as  we  take  the  doctrine  of  charitable  uses  to  be 
adopted  in  analogy  to  the  statute  of  that  name ;  or,  if  it  must  necessarily 
hace  a  statute  foundation,  we  must  forcibly  engraft  it  on  that  clause  of  our 
Act  which  limits  the  effect  of  a  parol  conveyance  to  the  creation  of  an 
estate  at  will,  though  there  be  great  difficulty  in  doing  this."  The  case, 
however,  presented  fair  ground  for  a  decree  of  specific  execution  on 
account  of  part-performance,  which  was  accordingly  granted.  In  Ellet  i». 
Paxson,  2  Watts  &  S.  418,  it  was  said  that  on  an  action  for  refusal  to 
fulfil  a  contract  to  purchase  land  the  vendor  was  at  most  only  entitled  to 
recover  his  actual  damage.  In  Whitehead  r.  Carr,  5  Watts  368,  which 
was  an  action  for  damages  for  refusal  to  convey  land  according  to  a  verbal 
contract,  brought,  as  it  appeared,  for  the  purpose  of  obtaining  an  opinion 
of  the  court  on  the  point  whether  such  an  action  would  lie,  Huston,  J., 
said:  "If  the  question  were  new,  and  there  were  no  decisions  on  the 
subject,  and  it  were  necessary  to  decide  it  in  this  case,  it  would  deserve 
and  obtain  very  serious  consideration."  These  expressions  show  that  an 
important  question  in  that  State  is  still  regarded  as  not  quite  closed.  It 
would  be  unprofitable,  however,  for  us  to  pursue  it  here,  as  in  the  great 
body,  if  not  all,  of  the  other  States  the  enactments  referred  to  have  been 
incorporated  together  in  the  local  law. 


300  STATUTE   OF   FRAUDS.  [CH.   XII. 

purpose  of  recovering  damages  for  the  non-performance  of 
the  contract,  and,  under  the  liberal  and  salutary  application 
of  those  sections  which  have  been  preserved  in  that  State, 
the  right  is  considerably  affected  in  its  extent.  Thus,  in 
an  action  by  the  vendor  on  such  a  contract,  he  is  not  allowed 
to  recover  the  full  amount  of  the  purchase-money  agreed  to 
be  paid;  for  this,  it  is  said,  would  be  in  effect  to  compel 
the  vendee  to  a  specific  execution  of  the  contract,  against 
the  spirit  of  the  other  sections  forbidding  the  establish- 
ment of  a  title  to  land  without  writing.1  The  vendee  may 
recover  the  actual  damage  he  has  sustained  by  the  refusal  of 
the  other  to  carry  out  the  contract,  and  nothing  more.  And 
where  the  vendee  sues  for  a  breach  by  the  vendor,  it  should 
seem  plain  that  he  is  to  recover  only  his  actual  damage,  and 
not  the  value  of  the  land,  which  he  bargained  for,  but  can- 
not acquire  a  title  to  on  account  of  the  first  three  sections  of 
the  statute.2  But  the  learned  judges  of  that  State  have  uni- 
formly refused  to  decree  a  specific  execution  of  a  verbal  con- 
tract for  the  sale  or  purchase  of  land,  unless  there  existed 
such  circumstances  as  in  England  are  held,  in  equity,  suffi- 
cient to  deprive  the  fourth  section  of  its  application,  such  as 
part-performance  of  the  contract  by  one  party  on  the  faith 
of  the  other's  engagement;  or  to  eject  the  vendors  by  pro- 
ceedings at  law  upon  the  proof  of  such  oral  contract ;  and 
their  determinations  have  been  placed  upon  the  ground  of 
the  existence  in  their  own  law  of  the  provisions  against  the 
creation  of  estates  in  land  without  writing.3  It  is  thus  appar- 

1  Wilson  v.  Clarke,  1  Watts  &  S.  554;  McDowell  v.  Over,  21  Pa.  St. 
417 ;  Moore  v.  Small.  19  Pa.  St.  461;  Ellet  r.  Paxson,  2  Watts  &  S.  418. 

2  Herzog  v.  Herzog,  34  Pa.  St.  418,  explaining  Jack  v.  McKee,  9  Pa. 
St.  235;  Bash  r.    Bash,  9  Pa.   St.  360;  Malaun  v.  Ammon,  1  Grant  123. 
And  see  McCafferty  v.  Griswold,  99  Pa.  St.  270. 

8  See  the  various  cases  cited  in  this  section,  and,  in  addition,  Soles  ». 
Hickman,  20  Pa.  St.  180;  Kurtz  v.  Cummings,  24  Pa.  St.  35;  Malaun 
v.  Ammon,  1  Grant  123;  Pattison  ».  Horn,  1  Grant  301;  Wible  v. 
Wible,  1  Grant  406;  Postlethwait  v.  Freaze,  31  Pa.  St.  472;  Washa- 
baugh  r.  Entriken,  36  Pa.  St.  513;  McKowen  v.  McDonald,  43  Pa.  St. 
441. 


CH.   XII.]  CONTRACTS   FOR  LAND.  301 

ent  that,  BO  far  as  the  office  of  the  fourth  section  is  to  cut  off 
such  an  equitable  claim  of  title  in  land  as  arises  in  a  con- 
tract for  the  purchase  of  it,  that  office  is  fulfilled  by  the  other 
provisions  referred  to. 

§  227.  With  these  preliminary  observations,  we  pass  to  the 
examination  of  that  clause  of  the  fourth  section  which  imme- 
diately forms  the  subject  of  the  present  chapter.  Two  ques- 
tions present  themselves  under  this  clause  which  will  be 
examined  in  order :  first,  as  to  what  is  embraced  in  the  words 
"lands,  tenements,  or  hereditaments,  or  any  interest  in  or 
concerning  them ;  "  and,  secondly,  as  to  what  is  a  "  contract 
or  [for]  sale  of  "  such  lands,  etc.  ;  the  one  question  relating 
to  the  subject-matter,  and  the  other  to  the  nature  of  the 
transaction. 

§  228.  We  have  already  had  occasion  to  remark  that  the 
language  which,  in  the  first  section,  is  used  to  describe  the 
interest  intended  to  be  made  grantable  from  that  time  by 
writing  only,  appears  to  be  no  more  comprehensive  than  that 
here  employed  to  describe  the  interest  which  it  was  intended 
should,  from  that  time,  be  bargained  for  by  writing  only.1 
Such  we' saw  was  the  opinion  of  a  very  eminent  writer;2  and 
a  broad  and  rational  view  of  the  whole  statute  taken  together, 
as  it  affects  real  property,  leads  to  the  conclusion  that  the 
Parliament  which  enacted  these  several  sections,  as  well  as 
that  which  concerns  trusts,  did  not  design  to  make  any  dis- 
tinction between  them  in  this  respect.  In  the  case  of  Wood 
v.  Lake,  so  prominent  in  a  former  chapter  on  the  subject  of 
leases,  it  appears  by  one  of  the  reports  that  Lee,  C.  J.,  took 
occasion  to  express  an  opinion  upon  the  force  of  the  term 
"any  uncertain  interest,"  etc.,  used  in  the  first  section,  and 
considered  that  it  meant  uncertainty  of  duration,  and  not 
uncertainty  of  quantity,  of  interest.8  And  it  seems  to  have 

*  Ante,  §§  4,  5. 

*  Sir  Edward  Sugden,  in  his  Treatise  on  the  Law  of  Vendors  and  Pur- 
chasers, p.  95. 

8  See  the  report  of  that  case  in  note  to  §  23,  ante. 


302  STATUTE   OF   FRAUDS.  [CH.  XIL 

been  supposed  in  a  Massachusetts  case,  that  the  decision  in 
Wood  v.  Lake,  to  the  effect  that  the  privilege  of  stacking  coal 
on  another's  land  for  seven  years  could  be  conferred  without 
writing,  might  be  supported  on  the  particular  words  in  ques- 
tion.1 The  repeated  decisions  in  England  since,  however, 
overruling  the  principle  of  Wood  v.  Lake,  show  conclusively 
that,  although  the  words  still  remain  in  the  English  statute, 
no  such  virtue  can  now  be  attributed  to  them.  The  words 
"lands,  tenements,  and  hereditaments,"  which  occur  in  every 
part  of  the  statute  where  real  estate  is  dealt  with,  certainly 
seem  to  embrace  all  that  can  be  embraced  by  the  other 
phrases  occasionally  used;2  and  we  may  perhaps  find  the 
latter  to  be  important  in  the  construction  of  the  statute  only 
in  the  way  of  an  illustration  of  the  extreme  solicitude  of  its 
framers  to  guard  property  of  this  nature  from  the  perils  of 
oral  testimony.3 

1  Stevens  v.  Stevens,  11  Met.  251. 

2  It  seems  that  a  contract  for  the  transfer  of  a  pre-emption  right, 
although  this  is  not  any  interest  in  the  legal  title,  but  merely  a  right  of 
occupancy  for  the  time  being,  with  privilege  of  purchase,  would  be  within 
the  statute.     Lester  v.  White,  44  111.  464.     See  also  Miller  r.  Specht.  11 
Pa.  St.  449,  where  one  having  an  oral  contract  for  the  transfer  of  a  lease 
was  said  to  have  no  interest  attachable  on  execution.     James  v.  Drake, 
39  Tex.  143;  Crumley  v.  Webb,  48  Mo.  562. 

8  Of  the  word  tenements,  which  is  the  only  word  nsed  in  the  Statute  fie 
Donis  to  express  its  subject-matter,  Lord  Coke  says,  that  it  "  includes  not 
only  all  corporate  inheritances,  which  are  or  may  be  holden,  but  also  all 
inheritances  issuing  out  of  any  of  those  inheritances,  or  concerning,  or 
annexed  to,  or  exercisible  within,  the  same,  though  they  lie  not  in  tenure." 
It  was  suggested  by  Lord  Littledale  in  Evans  v.  Roberts,  5  Barn  &  C. 
829,  that  the  words  "  lands,  tenements,  and  hereditaments,"  in  the  fourth 
section,  were  used  by  the  legislature  to  denote  a  fee-simple,  and  the  word's 
"  any  interest  in  or  concerning  them."  were  used  to  denote  a  chattel  inter- 
est, or  some  interest  lesa.  than  a  fee-simple.  But  it  is  settled  that  the 
seventh  section,  in  regard  to  trusts,  extends  to  trusts  in  chattels  real, 
though  the  latter  words  are  not  used  (ante,  §  82).  And,  on  an  examina- 
tion of  the  whole  statute,  it  is  impossible  to  conclude  that  the  framers  of 
it  meant  to  affix  to  these  words  their  technical  sens?.  For  instance,  the 
fifth  section  provides  that  devises  of  lands  and  tenements  shall  be  in  writ- 
ing, while  the  sixth  provides  that  no  written  devise  of  lands,  tenements,  or 
hereditaments  shall  be  revoked  except  in  certain  modes,  but  that  all  devises 


CH.   XII.]  CONTRACTS   FOR   LAND.  303 

§  229.  That  the  fourth  section  extends  to  and  embraces 
equitable  as  well  as  legal  interests  in  land  is  well  settled. 
It  has  been  held  by  Mr.  Justice  Story,  that  a  verbal  contract 
to  buy  a  contract  for  lands,  or,  in  other  words,  to  buy  another 
man's  rights  under  an  executory  agreement  for  the  sale  of 
lands  to  him,  was  affected  by  the  statute,  because  it  was  for 
the  purchase  of  an  equitable  interest  in  real  estate.1  Nor  can 
a  mortgagor's  equity  of  redemption  in  the  mortgaged  real 
estate  be  bought  or  sold  without  writing.2  Nor,  it  would 
seem,  can  such  equity  be  pledged  without  writing,  though  the 
contrary  has  been  held  in  Kentucky ; 8  the  contract  in  such 
a  case  must  eventually  work  a  transfer  of  the  equitable  right 


of  lands  and  tenements  shall  continue  in  force  till  so  revoked.  Again,  the 
seventh  section  provides  that  declarations  of  trusts  in  lands,  tenements,  or 
hereditaments  shall  be  manifested  by  writing,  while  the  eighth  excepts 
resulting  trusts  in  lands  or  tenements.  Obviously  it  is  unsafe,  on  a  statute 
so  loosely  drawn,  to  determine  anything  on  merely  verbal  differences. 

1  Smith  v.  Burnham,  3  Sumn.  435  ;  Hughes  v.  Moore,  7  Cranch 
(U.  S.)  176;  Simms  v.  Killian,  12  Ired.  (N.  C.)  252;  Toppin  v.  Lomas, 

16  C.  B.   145;  Richards  v.  Richards,  9  Gray  (Mass.)  313;  Whiting  v. 
Butler,  29  Mich.  122,  where  the  interest  of  an  execution  purchaser  was 
held  within  the  statute.     See  Grover  v.  Buck,  34  Mich.  519;  Daniels  p. 
Bailey,  43  Wise.   566;  Anderson   v.    Powers,  59  Texas  213.      But  see 
Sprague  v.  Haines,  68  Texas  215;  Chenoweth  v.   Lewis,  11  Rep.  380. 
It  was  said,  however,  in  Hosford  v.  Carter,  10  Abb.   (N.  Y.)  Pr.  452, 
that  an  agreement  by  one  having  the   refusal  of  a  piece  of  land  to 
procure  a  purchaser  for  it  need  not  be  in  writing.     Dougherty  v.  Cat- 
lett,  129  111.  431 ;  Darling  v.  Butler,  45  Fed.  Rep.  332;  Carr  v.  Williams, 

17  Kansas  575;  Telford  v.  Frost,  76  Wise.  172;  Rosenberger  v.  Jones, 
116  Mo.  559. 

8  Scott  v.  McFarland,  13  Mass.  309;  Marble  v.  Marble,  5  N.  H.  374; 
Hughes  v.  Moore,  7  Cranch  (U.  S.)  176;  Kelley  v.  Stanbery,  13  Ohio 
408;  Agate  v.  Gignoux,  1  Rob.  (N.  Y.)  278;  Massey  v.  Johnson,  1  Exch. 
255;  Toppiu  r.  Lomas,  16  C.  B.  145;  Williams  v.  Williams,  7  Reporter 
656  ;  Odell  v.  Montross,  68  N.  Y.  499;  Clark  v.  Condit,  18  N.  J.  Eq.  358; 
Van  Keuren  ».  McLaughlin,  19  N.  J.  Eq.  187.  See  In  re  Betts,  7 
Reporter  522 :  Cowles  v.  Marble,  37  Mich.  158.  But  see  Pomeroy  v. 
Winship,  12  Mass.  513;  Hogg  v.  Wilkins,  1  Grant  (Pa.)  67  ;  Shaw  v. 
Walbridge,  33  Ohio  St.  1;  Rawdon  v.  Dodge,  40  Mich.  697;  Wendover  v. 
Baker,  25  S.  W.  Rep.  (Mo.)  918. 

8  Griffin  v.  Coffey,  9  B.  Mon.  452. 


304  STATUTE   OF   FRAUDS.  [CH.   XII. 

and  title.1     It  has  been  held,  however,  that  an  equity  of 
redemption  may  be  surrendered  without  writing.2 

§  230.  A  widow's  right  of  dower  also  is  clearly  an  interest 
in  land,  which  cannot  be  released,  waived,  or  discharged 
without  writing.3  So  also  the  right  of  the  husband  in  his 
wife's  land,  under  an  anticipated  marriage,  cannot  be  sur- 
rendered by  his  oral  ante-nuptial  agreement.4  Of  course  the 
statute  extends  to  rents,  commons,  and  all  incorporeal  here- 
ditaments.5 It  also  embraces  agreements  for  the  assignment 
of  a  lease,6  and  executory  agreements  for  the  creation  of  such 
leases  as  would  be,  after  they  were  created,  valid  by  reason 
of  the  exception  contained  in  the  second  section  of  the  stat- 
ute.7 An  agreement  for  board  and  lodging,  as  not  involv- 

1  See  §  73,  supra. 

2  Falls  v.  Conway  Ins.  Co.,  7  Allen  (Mass.)  46;  Shaw  v.  Walbridge, 
33  Ohio  St.  1. 

8  Finney  v.  Finney,  1  Wils.  34;  White  v.  White,  1  Harr.  (N.  J.)  202; 
Keeler  v.  Tatnell,  3  Zab.  (N.  J.)  62;  Hall  v.  Hall,  2  McCord  (S.  C.)  Ch. 
269;  Shot  well  v.  Sedam,  3  Ohio  5;  Gordon  v.  Gordon,  56  N.  H.  170. 
See  Madigan  v.  Walsh,  22  Wise.  501.  An  agreement  by  a  widow,  who 
was  also  administratrix,  to  release  her  dower  if  the  price  of  the  lands  of 
her  deceased  husband,  when  sold,  should  reach  a  certain  sum,  is  within 
statute.  Wright  v.  De  Groff,  14  Mich.  164.  An  agreement  by  the  vendor 
of  land  to  procure  a  relinquishment  of  his  wife's  right  of  dower,  is  within 
the  statute.  Martin  v.  Wharton,  38  Ala.  637.  The  mere  assignment  of 
dower,  however,  may  be  by  parol,  as  the  estate  is  conferred  upon  the 
widow  by  the  act  of  the  law.  Lenfers  v.  Henke,  73  111.  405;  Dunlap  v. 
Thomas,  69  Iowa  358.  Ante,  §  77. 

4  De  Bardelaben  v.  Stoudenmire,  82  Ala.  574. 

6  Roberts  on  Frauds,  127;  Brown  v.  Brown.  33  N.  J.  Eq.  650 ;  Barnes 
».  Boston  &  Maine  R.  R.,  130  Mass.  388.  It  seems  now  to  be  settled'in 
California  that  an  interest  in  a  mining  claim  is  not  an  interest  in  land 
under  the  statute.  See  Copper  Hill  Mining  Co.  v.  Spencer,  25  Cal.  18 ; 
Garthe  v.  Hart,  73  Cal.  541 ;  Moritz  v.  Lavalle,  77  Cal.  10.  But  the 
contrary  doctrine  has  been  approved  by  the  U.  S.  Supreme  Court  in 
Mining  Co.  v.  Taylor,  100  U.  S.  42.  And  it  may  be  doubted  if  the 
California  act  of  1860,  cited  by  the  court  in  Garthe  v.  Hart,  in  reality 
affects  the  question.  See  opinion  of  Sawyer,  J.,  in  Goller  v.  Fett,  30 
Cal.  482. 

6  Anonymous,  1  Vent.  361 ;  Poultney  v.  Holmes,  1  Stra.  405 ;  Potter 
v.  Arnold,  15  R.  I.  350  ;  Nally  v.  Reading,  107  Mo.  350. 

7  Edge  v.  Strafford,  1  Cromp.  &  J.  391 ;  s.  c.  1  Tyrw.  93 ;  Delano  v. 


CH.   XII.]  CONTKACTS   FOR   LAND.  305 

ing  an  interest  in  land,  is  held  not  to  require  a  written 
memorandum.1 

§  230  a.  Where  it  was  provided  by  will  that  the  testator's 
lands  should  be  converted  into  money  and  this  money  divided 
among  the  heirs,  it  was  held  that  before  such  division  one  of 
the  heirs  might  sell  his  interest  to  another  without  writing.2 

§  231.  Mere  possession  of  land  seems  to  be  properly  re- 
garded as  such  an  interest  in  or  concerning  the  land  itself 
as  cannot  be  contracted  for,  or  disposed  of,  without  writing. 
Mr.  Baron  Parke,  it  is  true,  in  a  case  where  the  contract  in 
question  was  really  for  an  assignment  of  a  lease,  and,  of 
course,  not  binding  by  parol,  said  that  if  it  had  been  to  relin- 
quish the  possession  merely,  it  might  not  have  amounted  to 
a  contract  for  an  interest  in  land.3  But  upon  such  a  casual 
suggestion  as  this,  it  would  be  unreasonable  to  base  an  ex- 
ception which  goes  more  to  the  letter  than  to  the  spirit  of  the 
statute.  As  was  said  in  the  Supreme  Court  of  New  York, 
"Possession  is  prima  facie  evidence  of  title,  and  no  title  is 
complete  without  it, "  and  accordingly  they  held  that  it  "  must 
be  considered  an  interest  in  land,  within  the  meaning  of  the 
Statute  of  Frauds."4  In  Maine,  where  by  statute  a  mort- 

Montague,  4  Gush.  (Mass.)  42  ;  Stackberger  v.  Mostaller,  4  Ind.  461. 
But  since  the  revision  of  the  New  York  Statutes  (2  R.  S.  134,  §§  6,  8)  see 
Young  v.  Dake,  5  N.  Y.  463,  and  ante,  §  34 ;  Wallace  v.  Rappleye,  103 
111.  229. 

1  Wright  v.  Stavert,  2  El.  &  E.  721 ;  and  ante,  §  20.  Where  pews  are 
treated  as  real  estate,  agreements  for  their  transfer  must,  of  course,  be 
in  writing.  Vielie  v.  Osgood,  8  Barb.  (N.  Y.)  130.  See  Barnard  r. 
Whipple,  29  Vt.  401. 

3  Mellon  v.  Read,  123  Pa.  St.  1. 

8  Buttemere  v.  Hayes,  5  Mees.  &  W.  453.  See  Smith  v.  Tombs,  3  Jur. 
72;  Smart  ».  Harding,  15  C.  B.  652. 

4  Howard  v.  Easton,  7  Johns.  205.  which  was  afterwards  quoted  to  the 
same  point  and  affirmed  in  Lower  v.  Winters,  7  Cow.  263.     Shortly  after 
Howard  v.  Easton  there  was  a  case  in  New  York  where  one  man  agreed 
to  remove  his  fence  so  as  to  open  a  certain  road  to  its  original  width,  and 
in  consideration  thereof  another  agreed  to  pay  him  a  sum  of  money ;  the 
court  held  that  this  was  not  an  agreement  concerning  an  interest  in  land, 
since  no  interest  in  land  was  to  be  conveyed.    But  it  would  seem  that 

20 


306  STATUTE  OF  FRAUDS.  [CH.  Xlt 

gagee  might  recover  possession  before  any  breach  of  the  con- 
dition, if  there  was  no  agreement  to  the  contrary,  it  was  held 
that  such  an  agreement  must  be  in  writing  as  affecting  the 
title  to  real  estate  by  divesting  the  party  of  the  right  of 
possession.1  And  it  was  apparently  on  the  same  ground 
that  it  was  held  in  Connecticut,  that  a  verbal  agreement, 
made  at  the  delivery  of  a  deed,  that  the  grantee  should  not 
take  possession  nor  record  his  deed  until  he  should  pay  the 
first  instalment  of  the  purchase-money,  was  inoperative.2 

§  232.  An  easement  in  the  land  of  another  is,  by  common 
law,  grantable  only  by  deed,  and  of  course  no  verbal  agree- 
ment which  amounts  to  conferring  an  easement  or  a  right  in 
the  nature  of  one  can  be,  as  such,  available  to  either  of  the 
parties  to  it.  The  law  on  this  point  is  too  well  settled  to 
require  any  detailed  citation  of  authorities.3  Many  cases 
have  arisen,  however,  in  England  and  in  this  country,  where 
such  a  verbal  agreement,  when  it  has  been  so  far  acted  upon 
by  one  of  the  parties  that  it  would  be  a  fraud  upon  him  to 
repudiate  it,  has  been  held  binding  against  the  other  in  a 

here  the  former  party  gave  up  the  possession  of  his  land,  if  he  did  not 
give  up  the  fee  by  dedication  to  the  public,  and  that  the  fact  that  the 
latter  party  did  not  personally  acquire  it  should  make  no  difference. 
From  the  words  former  width,  however,  it  may  be  gathered  that  the  bar- 
gainer had  without  right  enclosed  part  of  the  highway,  in  which  case  he 
evidently  had  nothing  in  the  land  in  question  to  part  with.  The  case  is 
Storms  v.  Snyder,  10  Johns.  109.  See  also  Onderdonk  v.  Lord,  Hill  &  D. 
(N.  Y.)  129;  Rice  v.  Roberts,  24  Wise.  461. 

1  Norton  v.  Webb,  35  Me.  218;  Colman  v  Packard,  16  Mass.  39. 

2  Gilbert  v.  Bulkley.  5  Conn.  262.     In  Kerr  r  Shaw,  13  Johns.  (N.Y.) 
236,  it  was  held  that  a  warranty  for  the  quiet  enjoyment  of  land  was 
within  the  statute,  and  must  express  the  consideration  of  it.     As  to  the 
possession  of  land  being  an  interest,  etc.,  within  the  statute,  see,  further, 
Smart  v.  Harding,  15  C.   B.  652;  Whittemore  v.   Gibbs,  24  X.  H.  484; 
Miranville  v.  Silverthorn,  1  Grant  (Pa.)  410;  Sutton  v.   Sears,  10  Ind. 
223. 

8  See  the  decisions  collected  and  reviewed  in  Gale  and  Whatley  on 
Easements,  cap.  3,  §  1.  Also  in  Angell  on  Watercourses,  §§  168  et  seq. 
And  see  ante,  §§  21  et  seq.,  in  relation  to  licenses  to  be  exercised  upon 
land.  A  contract  to  convey  an  existing  easement  is  within  the  statute. 
Terrell  v.  Ferrell,  1  Baxt.  (Tenn.)  329. 


CH.   XII.]  CONTRACTS   FOR   LAND.  307 

court  of  equity;  but  for  these  cases  reference  must  be  had  to 
a  subsequent  chapter,  in  which  the  whole  subject  of  the 
peculiar  equitable  doctrine  as  to  contracts  within  the  Statute 
of  Frauds  is  examined.1 

§  233.  Although  the  improvements  put  upon  land,  such  as 
buildings  and  other  erections,  tillage  and  labor  generally, 
may  be  so  incorporated  with  the  land  itself  as  to  be  insepara- 
ble therefrom  in  fact,  yet  it  would  seem  that  they  ought  to  be 
so  far  separately  regarded  as  to  be  capable  of  a  distinct  pur- 
chase and  sale  by  verbal  contract.  In  Falmouth  v.  Thomas, 
where  the  action  was  upon  a  verbal  agreement  by  the  lessee 
of  a  farm,  "to  take  at  a  certain  valuation  growing  crops 
thereon,  and  certain  work,  labor,  and  materials  which  the 
plaintiff  had  done  and  expended  upon  the  land,"  Lord  Lynd- 
hurst  said:  "The  defendant  would  not  have  the  benefit  of 
the  work,  labor,  and  materials,  unless  he  has  the  land ;  and 
we  are  of  opinion  that  the  right  to  the  crops,  and  the  benefit 
of  the  work,  labor,  and  materials,  were  both  of  them  an 
interest  in  the  land;  but  if  either  of  the  two  were  properly  an 
interest  in  the  land,  this  would  form  a  sufficient  objection  to 
the  special  counts,"  etc.  And  again,  of  the  latter  part  of 
the  agreement,  he  says,  "It  was  a  contract  for  that  which 
was,  at  the  time  of  such  contract,  an  interest  in  the  land, 
and  for  that  which  never  was,  and  never  could  be,  separated 
from  it."2  It  will  be  observed,  however,  that  his  Lordship 
himself  admitted  it  to  be  unnecessary  to  the  case  to  decide 
this  point;  and  doubtless  his  attention  was  upon  that  account 
less  strictly  bestowed  upon  it.  It  is  certainly  settled  in 
England  that  an  agreement  to  pay  an  increased  rent  in  con- 
sideration of  repairs  is  not  to  be  treated  as  a  new  lease,  and 
this  seems  to  cover  the  principle  which  has  been  stated.8 

1  See  poxt.  Chap.  XIX. 

2  Earl  of  Falmouth  i».  Thomas,  1  Cromp.  &  M.  89.     See  Vanghan  v. 
Hancock,  3  C.  B.  766. 

•«  Hoby  r.  Roebuck,  2  Marsh.  433;  s.  c.  7  Taunt.  157;  Price  v.  Ley- 
burn,  Go\v  109.  In  Angell  '••  Duke,  L  R.  10  Q.  B.  174,  the  agreement 
as  to  repairs  and  furniture  was  held  not  to  be  within  the  statute.  So  a 


308  STATUTE   OF  FKAUDS.  [CH.  XII. 

The  American  courts  have  taken  the  broader,  and  on  the 
whole  more  reasonable  view  of  the  subject,  and,  however  the 
law  might  now  be  held  in  England  in  a  case  directly  present- 
ing the  question,  it  appears  to  be  settled,  so  far  as  this 
country  is  concerned,  that  these  improvements  put  upon  land 
are  not  necessarily  to  be  regarded  as  land,  because  incorpo- 
rated with  it.  In  New  York,  in  a  case  where  a  verbal  prom- 
ise to  pay  the  plaintiff  (who  had  without  any  title  entered  and 
occupied  and  improved  the  defendant's  land)  for  his  tillage, 
and  sundry  buildings  erected  thereon,  was  held  by  the  Supreme 
Court  to  be  binding,  Spencer,  J.,  delivering  the  opinion  of 
the  court,  thus  clearly  and  rationally  set  forth  the  view  on 
which  the  decision  proceeded :  "  This  was  not  a  contract  or 
sale  of  lands,  tenements,  or  hereditaments,  or  any  interest 
in  or  concerning  them,  but  related  to  the  labor  only  which 
had  been  bestowed  upon  the  land,  under  the  denomination  of 
improvements.  Was  it  ever  supposed  that  a  parol  contract 
to  pay  for  work  to  be  done  on  land,  or  for  what  had  been 
done,  was  a  void  undertaking  as  under  the  statute?  The 
contract  in  such  case  does  not  go  to  take  from  the  promisor 
the  land  or  any  interest  in  or  concerning  it. "  1 

promise  to  keep  down  rabbits  upon  leased  land  may  be  binding,  though 
by  parol.  Morgan  v.  Griffith,  L.  R.  6  Ex.  70.  See  Beach  v.  Allen,  7 
Hun  (N.  Y.)  441. 

1  Frear  v.  Hardenbergh,  5  Johns.  272,  and  the  following  cases:  Bene- 
dict v.  Beebe,  11  Johns.  145;  Mitchell  v.  Bush,  7  Cow.  185;  Lowers. 
Winters,  7  Cow.  263;  Howard  v.  Easton,  7  Johns.  205.  A  subscription 
paper  for  the  erection  of  a  church  edifice  was  held  (apparently  on  the 
same  principle)  to  be  not  a  contract  within  the  New  York  Statute  of 
Frauds,  in  Barnes  v.  Ferine,  15  Barb.  249.  The  doctrine  expressed  in 
Frear  v.  Hardenbergh  has  been  also  adopted  in  Alabama  (Scoggin  v. 
Slater,  22  Ala.  687;  Cassell  v.  Collins,  23  Ala.  676)  ;  in  Towa  (Zickafosse 
v.  Hulick,  1  Morris  175);  in  Missouri  (Clark  v.  Shultz,  4  Mo.  235),  where 
it  was  commended  on  the  further  ground  of  the  encouragement  which  it 
offered  to  settlers  to  occupy  and  improve  uncultivated  lands ;  perhaps, 
also,  in  Vermont  (Forbes  v.  Hamilton,  2  Tyler  356);  and  it  has  been 
referred  to  by  the  Supreme  Court  of  Indiana  as  settled  (Green  v.  Vardi- 
man,  2  Blackf.  324).  See  also  South  Baltimore  Co.  v.  Muhlbach,  69 
Md.  395. 


CH.   XII.]  CONTRACTS   FOR  LAND.  309 

§  234.  In  the  case  ot  fixtures,  which  are  in  no  sense  incor- 
porated with,  but  merely  annexed  to  the  freehold,  the  rule  is 
well  settled  that  the  fourth  section  does  not  apply  to  render 
verbal  contracts  for  the  sale  of  them  inoperative.1  As  has 
been  very  correctly  observed,  a  transfer  of  fixtures  simply 
seems  to  be  nothing  more  than  a  transfer  of  the  right  which 
the  vendor  has  to  sever  certain  chattels  attached  to  the  soil, 
but  not  part  of  the  freehold.2 

§  234  a.  In  a  recent  case  in  the  Court  of  Appeals  of  New 
York,  a  barn,  "a  wooden  structure  worth  less  than  $200, 
and  resting  upon  four  large  stones  at  the  corners  and  smaller 
stones  at  other  places, "  stood  upon  a  certain  lot  of  land  origi- 
nally owned  by  the  defendant,  who  subsequently  sold  a  por- 
tion, including  about  two-thirds  of  the  land  under  the  barn, 
to  the  plaintiff  by  mesne  conveyances.  At  the  time  of  each 
conveyance  a  statement  of  the  defendant's  claim  to  the  whole 
barn  was  made  —  and  an  oral  reservation  thereof  —  and  the 
defendant  occupied  the  barn  continuously  up  to  the  sale  to 
the  plaintiff.  After  this,  defendant  removed  so  much  of  the 
barn  as  stood  over  plaintiff's  land,  and  plaintiff  sued  for 
trespass.  The  case  therefore  presented  distinctly  the  ques- 
tion of  the  validity  of  an  oral  reservation  of  a  building  re- 
movably located  upon  land  at  the  time  of  sale.  The  plain- 
tiff had  judgment.  The  court  say:  "If  at  the  time  of 
the  conveyance  the  barn  had  been  personal  property  in  the 


1  Hallen  v.  Runder,  1   Cromp.  M.  &  R.  266;  Horsfall  v.  Hey,  2  Exch. 
778;  Bostwick  v.  Leach,  3  Day  (Conn.)  476.     Where  a  house  standing 
on  the  land  of  another  has  been  sold  and  delivered  to  a  third  party,  the 
seller  may  recover  the  price  on  the  common  count  for  goods  sold  and 
delivered      Keyson  v.  School  District,  35  N.  H.  477.     And  see  Long  v. 
White,  42  Ohio  St.  59.     But  in   Meyers  v.  Schemp,  67  111.  469,  the  Su- 
preme Court  held  that  a  contract  for  the  sale  of  bricks,  etc.,  the  remains 
of  a  house  that  had  been  burned,  was  for  an  interest  in  land,  "because, 
prima  facie,  a  building  is  real  estate."     And  see  Lavery  v.  Pursell,  L.  R. 
39  Ch.  D.  508;  South  Baltimore  Co.  v.  Muhlbach,  69  Md.  395;  Moody  v. 
Aiken.  50  Texas  65;  Michael  v.  Curtis,  60  Conn.  363. 

2  Chitty  on  Contracts,  320. 


310  STATUTE   OF   FRAUDS.  [CH.   XII. 

ownership  of  some  other  person,  and  the  grantees  had  been 
notified  of  that  fact,  the  title  to  it  would  not  have  passed 
by  the  successive  conveyances.  If  this  barn  had  been  placed 
upon  the  lot  by  some  third  person  with  the  consent  of  the 
owner,  and  with  the  understanding  that  such  third  person 
could  at  any  time  remove  it,  it  would  have  remained  personal 
property,  and  would  not  have  passed  to  a  purchaser  under 
any  form  of  conveyance,  providing  such  purchaser  had  notice 
of  the  fact.  But  when  the  land  and  the  buildings  thereon 
belong  to  the  same  person,  then  the  buildings  are  a  part  of 
the  real  estate  and  pass  with  it  upon  any  conveyance  thereof. 
In  such  a  case,  the  grantor  can  retain  title  to  the  buildings 
only  by  some  reservation  in  the  deed,  or  by  some  agreement 
in  writing  which  will  answer  the  requirements  of  the  Statute 
of  Frauds. " l 

§  234  b.  Partition  walls  and  fences  are  considered  as  real 
estate  within  the  Statute  of  Frauds,  on  the  ground  that  their 
use  as  such  involves  the  right  of  occupation  of  the  land  to 
that  extent.2 

§  235.  Under  the  general  head  of  contracts  for  the  sale  of 
what  is  annexed  to  or  incorporated  with  land,  the  most  dim- 
cult  and  embarrassing  cases  are  those  which  deal  with  con- 
tracts for  the  sale  of  crops  and  other  natural  products  growing 
upon  land.  Upon  this  subject  the  decisions  of  the  English 
courts  have  been  singularly  vacillating  and  inconsistent,  and 
many  cases  in  which  particular  rules  have  been  laid  down  for 
determining  the  question  of  the  application  of  the  statute 
have,  on  subsequent  consideration,  been  in  whole  or  in  part 
overruled.  It  would  therefore  be  presumptuous,  and  would 
only  mislead  the  reader,  to  attempt  to  reconcile  all  the  deci- 
sions ;  at  the  same  time  it  is  impossible  to  escape  the  duty  of 
investigating  them  and  comparing  the  principles  upon  which 
they  have  been  respectively  decided. 

§  236.  There  is,  of  course,  nothing  in  the  vegetable  product 

1  Citing  Noble  v.  Bosworth,  19  Pick.  (Mass  )  314. 

2  Rudisill  v.  Cross,  54  Ark.  519;  Walker  v.  Shackelford,  49  Ark.  563. 


CH.   XII.]  CONTRACTS   FOR   LAND.  311 

itself  which  is  an  interest  in  or  concerning  land.  When 
severed  from  the  soil,  whether  trees,  grass,  and  other  sponta- 
neous growth  (prima  vestura),  or  grain,  vegetables,  or  any 
kind  of  crops  properly  so  called  (fructus  industriales),  the 
product  of  periodical  planting  and  culture,  they  are  alike 
mere  chattels,  the  sale  of  which,  when  their  value  exceeds  a 
certain  sum,  may  be  affected  by  another  provision  of  the  stat- 
ute,1 but  is  in  no  way  affected  by  that  which  we  are  now  con- 
sidering. And  this  severance  may  be  a  severance  in  fact,  as 
when  they  are  actually  cut  and  removed  from  the  ground ;  or 
a  severance  in  law,  as  when,  while  they  are  still  growing,  the 
owner  in  fee  of  the  land,  by  a  valid  conveyance,  sells  them  to 
another  person;2  or,  where  he  sells  the  land,  reserving  them 
by  express  provision.3  In  certain  cases,  also,  though  they 
are  actually  growing  in  land,  they  may  never  have  any  char- 
acter of  realty  themselves;  as,  for  instance,  if  the  title  to 
them  and  the  title  to  the  land  were  originally  and  have  re- 
mained distinct.  A  familiar  case  of  this  is  found  in  nursery- 
trees  ;  the  nurseryman  merely  using  the  land  for  the  purpose 
of  nourishing  his  trees,  the  interest  in  the  trees  may  be  con- 
sidered as  separated  from  the  realty,  and  they  may  well  be 
denominated  personal  chattels,  for  the  wrongful  taking  and 
conversion  of  which  the  owner  may  maintain  an  action  de 
bonis  asportatis.*  Such  cases  of  mere  annexation  to,  without 

1  The  seventeenth  section.     See  post,  Chap.  XIV. 

2  Warren  v.  Leland,  2  Barb.  (N.  Y.)  613;  Smith  r.  Bryan,  5  Md.  141. 
This  appears  to  have  been  the  case  in  Teal  v.  Auty,  2  Brod.  &  B.  99. 
See  Richards  t>.  Burroughs,  62  Mich.  117 ;  Taylor  v.  Mueller,  30  Minn. 
343. 

8  Bank  of  Lansingbnrgh  t».  Crary.  1  Barb.  (N.  Y.)  542.  See  Backen- 
stoss  v.  Stabler,  33  Pa.  St.  251 ;  Harbold  v.  Kuster,  44  Pa.  St.  392,  where 
it  was  also  said,  per  Paige,  J.,  that  a  mortgage  of  growing  trees  or  grass, 
given  by  the  owner  in  fee  of  the  land  of  which  they  are  parcel,  does  not 
work  a  severance  of  them  from  the  land  until  the  mortgage  becomes 
absolute  by  the  non-performance  of  the  condition. 

4  Per  Dewey,  J.,  delivering  the  opinion  of  the  Supreme  Court  of  Mas- 
sachusetts in  Miller  v.  Baker,  1  Met.  27 ;  and  see  Penton  v.  Robart,  2 
East  88  ;  Wyndham  v.  Way,  4  Taunt.  316  ;  Smith  v.  Price,  39  111.  28.  In 


312  STATUTE   OF   FKAUDS.  [f!H.   XII. 

incorporation  with,  the  freehold,  would  seem  to  be  properly 
regarded  in  the  same  light  as  cases  of  fixtures,  which,  as  we 
have  just  seen,  may  be  sold  without  writing.1 

§  237.  Considering  these  vegetable  products,  however,  as 
growing  in  the  land,  there  is  great  conflict  in  the  cases  upon 
the  question  whether  a  contract  for  the  sale  of  them  shall  be 
regarded  as  a  contract  for  the  sale  of  an  interest  in  land. 
But  upon  a  careful  examination,  the  more  approved  and  sat- 
isfactory rule  seems  to  be  that,  if  sold  specifically,  and  to  be 
by  the  terms  of  the  contract  delivered  separately  and  as 
chattels,  such  a  contract  of  sale  is  not  affected  by  the  fourth 
section  of  the  statute,  as  amounting  to  a  sale  of  any  interest 
in  the  land;  and  that  the  rule  is  the  same,  when  the  trans- 
action is  of  this  kind,  whether  the  product  sold  be  trees, 
grass,  and  other  spontaneous  growth,  or  grain,  vegetables,  or 
other  crops  raised  by  periodical  cultivation.  This  important 
principle  requires  to  be  fully  developed  and  explained,  and 
the  authorities  examined  in  detail  and  applied. 

§  238.  In  Emmerson  v.  Heelis  in  the  Common  Pleas,  in 
1809,  the  action  was  assumpsit  for  non-fulfilment  of  a  verbal 
contract  to  remove  certain  lots  of  turnips,  alleged  to  have 
been  bought  of  the  plaintiff  by  the  defendant,  and  to  bring 
back  and  lay  on  the  ground  a  certain  quantity  of  manure. 
The  turnips  were  growing  at  the  time,  and  were  sold  at  auc- 
tion by  lots,  each  lot  containing  so  many  stitches  or  rows. 
The  question  directly  before  the  court  was  upon  the  sufficiency 
of  the  auctioneer's  memorandum  of  the  purchase,  and  it  was 
held  to  be  sufficient.  But  Chief  Justice  Mansfield  said,  in 

Lee  v.  Risdon,  7  Taunt.  191,  Gibbs,  C.  J.,  discussing  the  more  general 
question  of  fixtures,  says  that  trees  in  a  nursery-ground  are  a  part  of  the 
freehold  until  severed ;  but  this  must  mean  as  between  the  heir  and  the 
executor,  or  where  the  entire  property  in  the  land  and  the  trees  growing 
thereon  are  united  in  the  same  person.  See  Miller  v.  Baker,  supra.  It 
is  apprehended,  however,  that  if  a  nurseryman  having  trees  lodged  in 
the  land  should  afterwards  purchase  the  land,  the  trees  would  not  thereby 
be  made  part  of  the  realty, 
i  Ante,  §  234. 


CH.    XII.]  CONTRACTS  FOR   LAND.  313 

passing:  "Now  as  to  this  being  an  interest  in  land,  we  do 
not  see  how  it  can  be  distinguished  from  the  case  of  hops ; "  l 
referring  to  Waddington  v.  Bristow,  which  was  decided  in  the 
Common  Pleas  in  1801.  Bearing  in  mind  that  this  observa- 
tion was  gratuitous, there  being  a  sufficient  memorandum  pro- 
duced, and  also  that  the  circumstance  that  the  turnips  were 
sold  as  to  be  severed  and  removed  from  the  land  does  not 
appear  to  have  been  noticed  by  the  Chief  Justice,  let  us  refer 
to  the  case  he  alludes  to  as  indistinguishable  from  that  before 
him.  In  Waddington  v.  Bristow,  the  action  was  upon  a  verbal 
agreement  for  the  purchase  of  all  the  growth  of  hops  on  a 
piece  of  land,  at  a  certain  rate  per  hundred-weight,  to  be  in 
pockets,  and  to  be  delivered  at  a  place  named  within  a  rea- 
sonable time  after  the  hops  were  picked  and  dried.  At  the 
time  of  the  contract,  the  hops,  which  were  the  subject  of  it, 
were  not  in  existence,  nothing  but  the  root  of  the  plant  being 
in  the  ground.  The  question  was  whether  it  was  a  sale  of 
goods,  wares,  and  merchandise,  so  as  to  be  exempted  under 
an  exception  in  the  Stamp  Act.  All  the  judges,  except 
Chambre,  J.,  confined  themselves  to  deciding  that  question 
in  the  negative;  he,  however,  went  further,  and  stated  his 
opinion  that  the  contract  gave  an  interest  to  the  vendee  in 
the  produce  of  the  vendor's  land;  but  neither  he  nor  the 
others  made  any  allusion  to  the  Statute  of  Frauds.2  The 
point  before  the  court  was  determined  without  any  reference 
to  the  statute,  and  unless  the  hops  were  necessarily  an  inter- 
est in  land  because  they  were  not  goods,  wares,  and  mer- 
chandise, the  case  affords  no  authority  for  the  decision  in 
Emmerson  v.  Heel  is. 

§  239.  In  Warwick  v.  Bruce,  decided  in  the  King's  Bench 
in  1813,  a  similar  question  arose.  The  defendant  verbally 
agreed  to  sell  to  the  plaintiff  all  the  potatoes  then  growing 
on  three  acres,  at  so  much  per  acre,  to  be  dug  up  and  carried 

1  Emmerson  v.  Heelis,  2  Taunt.  38;  doubted  in  Evans  v.  Roberts,  5 
Barn.  &  C.  829.     See  post,  §  240. 

2  Waddington  ».  Bristow,  2  Bos.  &  P.  452. 


314  STATUTE   OF   FRAUDS.  [CH.   XIL 

away  by  the  plaintiff;  the  plaintiff  paid  £40  on  the  agree- 
ment, and  dug  up  a  part,  and  carried  away  a  part  of  those 
dug,  but  was  prevented  by  the  defendant  from  digging  and 
carrying  away  the  remainder.  It  was  held,  that  he  was 
entitled  to  recover  for  this  breach,  the  oral  agreement  being 
not  within  the  fourth  section  of  the  Statute  of  Frauds.  Lord 
Ellenborough  said :  "  Here  is  a  contract  for  the  sale  of  pota- 
toes at  so  much  per  acre ;  the  potatoes  are  the  subject-matter 
of  sale,  and  whether  at  the  time  of  sale  they  were  covered 
with  earth  in  the  field,  or  in  a  box,  still  it  was  a  sale  of  a 
mere  chattel."1 

§  240.  Evans  v.  Roberts,  decided  in  the  King's  Bench  in 
1826,  was  an  action  on  the  defendant's  verbal  agreement  to 
purchase  of  the  plaintiff  a  cover  of  potatoes  then  in  the  ground, 
to  be  turned  up  by  the  plaintiff,  at  the  price  of  £5,  of  which 
the  defendant  paid  one  shilling  earnest.  A  verdict  had  been 
directed  below  for  the  plaintiff,  and  a  rule  to  set  it  aside  was 
now  discharged  by  the  court.  Mr.  Justice  Bay  ley  said :  "  The 
effect  of  the  contract  was  to  give  to  the  buyer  a  right  to  all 
the  potatoes  which  a  given  quantity  of  land  should  produce, 
but  not  to  give  him  any  right  to  the  possession  of  the  land ; 
he  was  merely  to  have  the  potatoes  delivered  to  him  when 
their  growth  was  complete."  He  admitted  that  Emmerson 
v.  Heelis  was  against  him,  but  rejected  that  decision  as  not 
upon  a  point  before  the  court,  and  as  founded  upon  a  miscon- 
ception of  Waddirigton  v.  Bristow.  He  then  proceeds  to 
say :  "  It  has  been  insisted  that  the  right  to  have  the  potatoes 
remain  in  the  ground  is  an  interest  in  the  land ;  but  a  party 
entitled  to  emblements  has  the  same  right,  and  yet  he  is  not 
by  virtue  of  that  right  considered  to  have  any  interest  in  the 
land."  Holroyd,  J.,  said:  "  This  is  to  be  considered  a  con- 
tract for  the  sale  of  goods  and  chattels  to  be  delivered  at  a 
future  period.  Although  the  vendee  might  have  an  inciden- 
tal right,  by  virtue  of  his  contract,  to  some  benefit  from  the 
land  while  the  potatoes  were  arriving  at  maturity,  yet  I  think 

1  Warwick  v.  Bruce,  2  Maule  &  S.  208. 


CH.   XII.]  CONTRACTS  FOR   LAND.  315 

he  had  not  an  interest  in  the  land  within  the  meaning  of  the 
statute.  He  clearly  had  no  interest  so  as  to  entitle  him  to 
the  possession  of  the  land  for  a  period,  however  limited,  for 
he  was  not  to  raise  the  potatoes.  Besides,  this  is  not  a  con- 
tract for  the  sale  of  the  produce  of  any  specific  part  of  the 
land,  but  of  the  produce  of  a  cover  of  land.  The  plaintiff 
did  not  acquire  by  the  contract  an  interest  in  any  specific 
portion  of  the  land.  The  contract  only  binds  the  vendor  to 
sell  and  deliver  the  potatoes  at  a  future  time,  at  the  request 
of  the  buyer,  and  he  was  to  take  them  away. "  And  he  con- 
cludes with  the  remark  that  the  contract  was  "  to  render  what 
afterwards  would  become  a  chattel. "  Lord  Littledale's  remarks 
are  too  valuable  to  be  omitted.  "I  am  of  opinion,"  says  he, 
"  that  a  sale  of  the  produce  of  the  land,  whether  it  be  in  a 
state  of  maturity  or  not,  provided  it  be  in  actual  existence 
at  the  time  of  the  contract,  is  not  a  sale  of  lands,  tenements, 
or  hereditaments,  or  any  interest  in  or  concerning  them, 
within  the  meaning  of  the  fourth  section  of  the  Statute  of 
Frauds.  The  words  'lands,  tenements,  and  hereditaments' 
in  that  section  appear  to  me  to  have  been  used  by  the  legis- 
lature to  denote  a  fee-simple,  and  the  words  'any  interest  in 
or  concerning  them  '  were  used  to  denote  a  chattel  interest, 
or  some  interest  less  than  the  fee-simple.  In  the  fifth  sec- 
tion, .  .  .  the  words '  lands  and  tenements  '  are  clearly  used 
to  denote  a  fee-simple  and  do  not  extend  to  leaseholds.  The 
legislature  contemplated  an  interest  in  land  which  might  be 
made  the  subject  of  sale.  I  think,  therefore,  they  must  have 
contemplated  the  sale  of  an  interest  which  would  entitle  the 
vendee  either  to  the  reversion  or  to  the  present  possession  of  the 
land.  Now  this  contract  only  gives  to  the  vendee  an  interest 
in  that  growing  produce  of  the  land  which  constituted  its 
annual  profit.  Such  an  interest  does  not  constitute  part  of 
the  realty."1 

§  241.  In  this  case  just  quoted  (the  great  importance  of 
which  seems  to  justify  the  extensive  quotations  which  have 

i  Evans  v.  Roberts,  5  Barn.  &  C.  829. 


316  STATUTE   OF  FRAUDS.  [CH.    XII. 

been  made  from  it)  frequent  allusion  is  made  to  two  other 
cases.  The  first  is  Crosby  v.  Wadsworth,  which  it  is 
deemed  convenient  to  examine  at  a  later  page.1  The  second 
is  Parker  v.  Staniland,  which,  for  the  reason  that  it  makes 
one  of  the  series  of  cases  necessary  to  be  studied  together 
upon  this  subject,  rather  than  because  it  gives  any  especial 
light  upon  the  rule  which  was  laid  down  at  the  outset,2 
should  here  be  explained.  It  was  upon  a  verbal  contract  for 
the  sale  of  potatoes  then  in  the  ground,  which  the  defendant 
was  to  get  himself  and  immediately.  The  defendant  had  par- 
tially gathered  them,  when  the  residue  were  spoiled  by  the 
frost,  and  he  refused  to  take  or  pay  for  them,  and  for  the 
price  of  the  remainder  the  action  was  brought.  A  rule  to 
set  aside  a  verdict  for  the  plaintiff  was  discharged.  Lord 
Ellenborough,  C.  J.,  said:  "It  does  not  follow  that  because 
the  potatoes  were  not  at  the  time  of  the  contract  in  the  shape 
of  personal  chattels,  as  not  being  severed  from  the  land,  so 
'that  larceny  might  be  committed  of  them,  therefore  the  con- 
tract for  the  purchase  of  them  passed  an  interest  in  the  land, 
within  the  fourth  section  of  the  Statute  of  Frauds.  The  con- 
tract here  was  confined  to  the  sale  of  the  potatoes,  and  nothing 
else  was  in  the  contemplation  of  the  parties.  It  is  probable 
that  in  the  course  of  nature  the  vegetation  was  at  an  end ; 
but  be  that  as  it  may,  they  were  to  be  taken  by  the  defendant 
immediately,  and  it  was  quite  accidental  if  they  derived  any 
farther  advantage  from  being  in  the  land.  .  .  .  The  lessee 
primce  vesturce  may  maintain  trespass  qu.  cl.  fr.,  or  ejectment 
for  injuries  to  his  possessory  right :  but  this  defendant  could 
not  have  maintained  either ;  for  he  had  no  right  to  the  posses- 
sion of  the  close  ;  he  had  only  an  easement,  a  right  to  come 
upon  the  land,  for  the  purpose  of  taking  up  and  carrying  away 
the  potatoes;  but  that  gave  him  no  interest  in  the  soil." 
Grose  and  Le  Blanc,  JJ.,  concurred,  and  also  Bay  ley,  J., 
who  observed  that  "  here  the  land  was  considered  as  a  mere 

1  Post,  §  244. 
a  Ante,  §  237. 


CH.   XII.]  CONTRACTS  FOR  LAND.  317 

warehouse  for  the  potatoes  till  the  defendant  could  remove 
them."1 

§  242.  The  next  case,  and  one  to  which  especial  attention 
should  be  paid,  for  its  bearing  upon  a  particular  branch  of 
this  question,  is  that  of  Smith  v.  Surman,  decided  in  the 
King's  Bench  in  1829.  The  defendant  verbally  agreed  to 
buy  of  the  plaintiff  a  large  quantity  of  timber,  which,  at  the 
time,  the  plaintiff  was  having  cut  down,  most  of  it  being  then 
actually  standing;  the  price  was  valued  per  foot,  and  no 
time  was  fixed  for  payment,  and  the  defendant  was  to  take 
and  carry  it  away.  A  rule  to  show  cause  against  setting 
aside  a  verdict  obtained  below  for  the  plaintiff  was  made 
absolute,  on  the  ground  that,  as  a  sale  of  goods,  wares,  and 
merchandise,  there  was  no  memorandum,  or  acceptance  and 
receipt,  as  required  by  the  seventeenth  section.  The  case, 
however,  presented  the  question  whether  the  contract  was  for 
an  interest  in  lands,  and  the  judges  agreed  that  it  was  not. 
Bayley,  J.,  said:  "The  contract  was  not  for  the  growing 
trees,  but  for  the  timber  at  so  much  a  foot ;  that  is,  the  pro- 
duce of  the  trees  when  they  should  be  cut  down  and  severed 
from  the  freehold."  Littledale,  J.,  said  the  fourth  section 
related  to  contracts  "which  give  the  vendee  a  right  to  the 
use  of  the  land  for  a  specific  period.  If  in  this  case  the  con- 
tract had  been  for  the  sale  of  the  trees,  with  a  specific  liberty 
to  the  vendee  to  enter  the  land  to  cut  them,  I  think  it  would 
not  have  given  him  an  interest  in  the  land  within  the  mean- 
ing of  the  statute.  The  object  of  a  party  who  sells  timber  is, 
not  to  give  the  vendee  any  interest  in  his  land,  but  to  pass 
to  him  an  interest  in  the  trees,  when  they  become  goods  and 
chattels.  Here  the  vendor  was  to  cut  the  trees  himself.  His 
intention  clearly  was,  not  to  give  the  vendee  any  property  in 
the  trees  until  they  were  cut,  and  ceased  to  be  part  of  the 
freehold."2 

1  Parker  v.  Staniland,  11  East  362. 

8  Smith  v.  Surman,  9  Barn.  &  C.  561.     See  Hanson  v.  Roter,  64  Wise. 
622 


318  STATUTE   OF  FRAUDS.  [CH.    XII. 

§  243.  Next,  we  must  briefly  notice  the  case  of  Sainsbury 
v.  Matthews,  decided  in  the  Court  of  Exchequer  in  1838,  the 
facts  of  which  were  that  the  defendant,  in  the  month  of 
June,  agreed  to  sell  to  the  plaintiff  the  potatoes  then  growing 
on  a  certain  quantity  of  land  of  the  defendant,  at  two  shil- 
lings per  sack,  the  plaintiff  to  have  them  at  digging  time 
(October),  and  to  find  diggers.  It  was  held  that  here  was 
not  a  contract  for  an  interest  in  land,  within  the  meaning  of 
the  fourth  section.  It  was  argued  by  the  defendant  that  the 
potatoes  were  not  in  such  a  shape  at  the  time  of  the  contract 
that  they  could  be  transferred  as  chattels ;  they  were  to  be 
taken  up  by  the  vendee  when  ripe,  and  he  must  necessarily 
have  the  benefit  of  the  land  for  the  three  intervening  months. 
But  the  judges  thought  otherwise.  Lord  Abinger,  C.  B., 
said :  "  I  think  this  was  not  a  contract  giving  an.  interest  in 
the  land ;  it  is  only  a  contract  to  sell  potatoes  at  so  much  a 
sack  on  a  future  day,  to  be  taken  up  at  the  expense  of  the 
vendee.  He  must  give  notice  to  the  defendant  for  that  pur- 
pose, and  cannot  come  upon  the  land  when  he  pleases. "  Parke, 
B.,  said  :  "  This  is  a  contract  for  the  sale  of  goods  and  chattels 
at  a  future  day,  the  produce  of  certain  land,  and  to  be  taken 
away  at  a  certain  time.  It  gives  no  right  to  the  land :  if  a 
tempest  had  destroyed  the  crop  in  the  mean  time,  and  there  had 
been  none  to  deliver,  the  loss  would  clearly  have  fallen  upon  the 
defendant. " J 

§  244.  The  American  decisions,  which,  upon  the  whole, 
are  quite  harmonious  with  the  general  tendency  of  those  we 
have  been  quoting,  will  be  referred  to  hereafter. 2  Meanwhile, 
one  more  case,  and  that  an  early  and  most  important  one, 
requires  to  be  examined.  This  is  Crosby  v.  Wadsworth, 
decided  in  the  King's  Bench  in  1805.  The  plaintiff  verbally 
agreed  to  purchase  from  the  defendant  a  standing  crop  of  mow- 
ing grass  then  growing  in  the  defendant's  close,  the  plaintiff 
to  mow  the  grass  and  make  it  into  hay,  but  the  time  when  the 

1  Sainsbury  v.  Matthews,  4  Mees.  &  W.  343. 

2  Post,  §§  255-257. 


CH.    XII.]  CONTRACTS   FOR  LAND.  319 

mowing  was  to  begin  was  not  fixed.  Before  the  plaintiff  had 
done  any  act  under  this  agreement,  the  defendant  notified  him 
that  he  should  not  have  the  grass,  and  sold  it  to  another  man. 
Plaintiff  afterwards  made  tender  of  the  agreed  price  of  the 
grass,  which  was  refused.  Defendant  locked  plaintiff  out  of 
the  close,  and  the  grass  was  finally  cut  and  carried  away  by 
the  second  purchaser.  The  action  was  trespass,  that  the 
defendant,  "with  force  and  arms,  broke  and  entered  a  cer- 
tain close  whereof  the  plaintiff  was  lawfully  possessed,  and 
trod  down  the  plaintiff's  grass  and  hay,  and  cut  down  the 
plaintiff's  grass  then  growing  in  the  close,  and  took  and  car- 
ried away,"  etc.  Lord  Ellenborough,  C.  J.,  said:  "As  the 
plaintiff  appears  to  have  been  entitled  (if  entitled  at  all  under 
the  agreement  stated)  to  the  exclusive  enjoyment  of  the  crop 
growing  on  the  land  during  the  proper  period  of  its  full 
growth,  and  until  it  was  cut  and  carried  away,  he  might  in 
respect  of  such  exclusive  right  maintain  trespass  against  any 
persons  doing  the  acts  complained  of  in  violation  thereof. 
.  .  .  This  brings  us  to  the  question,  whether  the  plaintiff 
had  under  the  agreement  and  circumstances  stated  any  legal 
title  to  this  growing  crop  at  the  time  when  the  injury  com- 
plained of  was  done ;  or  whether  his  supposed  title  thereto 
was  not  wholly  void,  as  being  created  by  parol,  under  any 
and  which  of  the  provisions  in  the  Statute  of  Frauds,  or  on 
any  and  what  other  account  ?  "  He  then  observes  that  the 
crop  was  not  goods,  wares,  and  merchandise,  being  an  unsevered 
portion  of  the  freehold,  and  also  that  for  further  reasons  the 
contract  did  not  amount  to  a  lease.1  He  then  proceeds  to 
say,  "  I  think  the  agreement  stated,  conferring,  as  it  professes 
to  do,  an  exclusive  right  to  the  vesture  of  the  land  during  a 
limited  time  and  for  given  purposes,  is  a  contract  or  sale  of 
an  interest  in,  or  at  least,  an  interest  concerning  lands."  He 
adds,  that  although  the  statute,  not  making  such  a  contract 
void,2  but  only  prohibiting  the  bringing  of  an  action  for  the 

1  See  this  case  referred  to  as  bearing  on  the  construction  of  the  statute 
as  it  regards  leases,  ante,  §  18. 

2  Ante,Ch&p.  VIII. 


320  STATUTE   OF  FRAUDS.    .  [CH.   XII. 

breach  of  it,  would  not  bar  a  mere  general  action  of  trespass 
(such  as  the  present)  for  injury  to  the  plaintiff's  possession, 
yet,  being  executory  and  not  actionable,  it  might  be  dis- 
charged before  anything  was  done  under  it  which  could 
amount  to  a  part  execution.  "  On  this  latter  ground,  there- 
fore, "  he  says,  "  namely,  that  this  parol  executory  contract, 
supposing  it  to  have  been  otherwise  valid,  was  competently 
discharged  by  parol,  we  feel  ourselves  obliged  to  say  that  the 
plaintiff  is  not  entitled  to  recover."  l  It  is  very  material  to 
note  his  remark  upon  the  case  of  Poulter  v.  Killingbeck, 
decided  in  the  Common  Pleas  in  1799.  There  the  plaintiff 
had  let  to  the  defendant  land,  without  rent,  from  which  he 
was  to  take  two  successive  crops,  and  to  render  to  the  plain- 
tiff a  moiety  of  the  crops  in  lieu  of  rent ;  and  afterwards  the 
value  of  the  crops  was  ascertained  by  appraisement,  and 
action  was  brought  in  indebitatus  assumpsit  for  moieties  of 
crops  sold,  and  for  money  had  and  received,  to  which  it  was 
objected  that  the  contract  was  for  an  interest  in  land ;  but 
Buller,  J.,  said:  "This  agreement  does  not  relate  to  any 
interest  in  the  land,  which  remains  altogether  unaltered  by 
the  arrangement  concerning  the  crops. "  2  Of  this  case  Lord 
Ellenborough  says  (in  the  decision  from  which  we  have  been 
quoting) :  "  The  contract,  if  it  had  originally  concerned  an 
interest  in  land,  after  the  agreed  substitution  of  pecuniary 
value  for  specific  produce  no  longer  did  so;  it  was  originally 
an  agreement  to  render  what  should  have  become  a  chattel,  that 
is,  part  of  a  severed  crop  in  that  shape,  in  lieu  of  rent,  and 
by  a  subsequent  agreement  it  was  changed  to  money. " 

§  245.  Let  us  now  attempt  an  analysis  of  the  doctrines 
comprised  in  the  cases  we  have  examined.  First.  It  is 
quite  clear  that  the  character  of  the  contract  for  the  growing 
produce  of  land  is  not  to  be  determined  by  the  mere  circum- 
stance that  the  purchaser  is  to  have  the  liberty  of  entering 
upon  the  land  to  gather  what  he  has  purchased.  In  Crosby 

1  Crosby  v.  Wadsworth,  6  East  602. 

2  Poulter  v.  Killingbeck,  1  Bos.  &  P.  397. 


CH.   XII.]  CONTRACTS   FOR   LAND.  321 

v.  Wadsworth,1  the  grass  was  to  be  mowed  and  made  into 
hay  by  the  purchaser ;  but  that  the  reason  why  the  contract 
there  was  held  to  convey  an  interest  in  land  was  not  the 
right  of  entry  given  to  the  purchaser,  is  clear  both  on  inspec- 
tion of  that  case  and  from  the  fact  that  in  Warwick  v.  Bruce2 
the  same  judge  held  a  contract  which  embraced  the  same 
right  to  be  binding  without  writing.  The  remarks  of  Hol- 
royd,  J.,  in  Evans  v.  Roberts,3  and  of  Littledale,  J.,  in 
Smith  v.  Surman,4  are  decisive  on  this  point;  and  in  Parker 
v.  Staniland,  where  the  same  feature  existed,  Lord  Ellen- 
borough  expressly  said  that  the  defendant's  "easement,"  or 
right  to  come  upon  the  land  for  the  purpose  of  carrying 
away  the  potatoes,  gave  him  no  interest  in  the  land.6  It  is 
indeed  a  very  familiar  rule  that  the  license  given  to  a  pur- 
chaser of  a  chattel  to  come  on  the  land  and  remove  it  is  not 
revocable  by  the  vendor,6  and  it  is  to  be  regretted  that  the 
subject  under  consideration  should  ever  have  been  compli- 
cated by  any  distinction  on  such  a  point.  But  the  rule  as 
stated  requires  to  be  carefully  applied.  It  may  be  that  the 
privilege  of  entry  is,  by  the  terms  of  the  contract,  to  con- 
tinue so  long  (as,  for  instance,  during  the  pleasure  of  the 
buyer,7  or  even  for  a  number  of  years8)  as  to  ingraft  upon 
a  transaction  which  was  nominally  a  purchase  of  a  chattel 
the  character  of  a  lease  of  land.  For  certainly  the  privilege 
of  occupying  another's  land  is  as  much  a  lease  when  the  occu- 
pancy is  by  leaving  purchased  articles  upon  it  as  when  it  is 

1  Ante,  §244.  2  Ante,  §239. 

8  Ante,  §  240.  «  Ante,  §  242. 

6  Ante,  §  241.     And  see  Smith  ?».  Surman,  ante,  §  242;  Jones  ».  Flint, 
10  Ad.  &  E.  753;  Nettleton  v.  Sikes,  8  Met.  (Mass.)  34;  Claflin  i>.  Car- 
penter, 4  Met.  (Mass.)  580;  Whitmarsh  v.  Walker,  1  Met.  (Mass.)  313; 
Miller  v.  Baker,  1  Met  (Mass.)  27;  Kleeb  v.  Bard,  7  Wash.  41.     But  see 
Carney  r.  Mosher,  97  Mich.  554. 

«  Wood  v.  Manley,  11  Ad.  &  E.  31;  Cool  v.  Peters  Co.,  87  Ind.  531. 

7  Erskine  v.  Plummer,  7  Greenl.  (Me.)  447. 

8  Putney  v.  Day,  6  N.  H.  430;  Olmstead  ».  Niles,  7  N.  H.  522;  Buck 
v.  Pickwell,  27  Vt  157.     But  see  Safford  v.  Annis,  7  Greenl.  (Me.)  168; 
Byassee  r.  Reese,  4  Met.  (Ky.)  372. 

21 


322  STATUTE   OF   FRAUDS.  [CH.    XII. 

by  depositing  any  other  articles  upon  it. J  Perhaps  the  only 
rule  which  can  be  safely  stated  on  this  point  is,  that  the  time 
allowed  for  the  removal  of  the  growing  produce  should  be 
such  as  is  reasonable  for  the  purpose  and  under  the  circum- 
stances in  which  the  parties  are  placed,  and  not  such  as  to 
tend  to  show,  either  by  its  length  or  its  indefiniteness,  that 
the  parties  really  contemplated  giving  and  acquiring  an 
interest  in  land. 

§  246.  Secondly.  There  is  no  materiality,  as  to  whether 
the  Statute  of  Frauds  affects  the  contract  or  not,  in  the  cir- 
cumstance that  the  produce  is  fully  grown  or  in  process  of 
growing  at  the  time  of  making  the  contract.  True,  Lord 
Ellenborough  made  such  a  distinction  in  the  case  of  Parker 
v.  Staniland,2  observing  that  there  the  potatoes  were  matured, 
whereas  in  Crosby  v.  Wadsworth  the  grass  was  in  a  growing 
state.  But  he  abandoned  it  four  years  afterwards  in  War- 
wick v.  Bruce,3  where  the  sale  was  of  a  growing  crop  of  pota- 
toes, and  was  held  good  because  the  contract  did  not  confer 
an  exclusive  right  to  the  land  for  a  time  for  the  purpose  of 
making  a  profit  of  the  growing  surface;  and  the  cases  of 
Evans  v.  Roberts,4  and  Sainsbury  v.  Matthews,6  were  both 
upon  sales  of  immature  crops,  and  in  xboth  the  sales,  though 
verbal,  were  held  good. 

§  247.  Thirdly.  The  mere  circumstance  that  the  produce 
purchased  may,  or  probably  or  certainly  will,  derive  nourish- 
ment from  the  soil  between  the  time  of  making  the  contract 
and  the  time  of  delivering  the  produce,  is  not  conclusive  as 
to  the  application  of  the  statute.  In  Warwick  v.  Bruce, 
where  the  potatoes  were  growing  and  no  time  was  fixed  for 

1  Ante,  §§  21  el  seq.,  in  regard  to  licenses  which  amount  to  leases, 
Huff  v.  McCauley,  53  Pa.  St.  206. 

2  Ante,  §  241.  8  Ante,  §239. 
*  Ante,  §  240. 

6  Ante,  §  243.  And  see  Jones  v.  Flint,  post,  §  251;  Bricker  v.  Hughes, 
4  Ind.  146;  Sherry  v.  Picken,  10  Ind.  375  ;  Bull  v.  Griswold,  19  111.  631 ; 
Bryant  v.  Crosby,  40  Me.  9 ;  Marshall  v.  Ferguson,  23  Cal.  65.  But  see 
Powell  v.  Rich,  41  111.  466. 


CH.    XII.]  CONTRACTS  FOR  LAND.  323 

their  removal,  Lord  Ellenborough  said,  "that  whether  at  the 
time  of  sale  they  were  covered  with  earth  in  the  field,  or  in  a 
box,  still  it  was  a  sale  of  a  mere  chattel."  l  So  in  Parker  v. 
Staniland,2  he  said:  "It  is  probable  that  in  the  course  of 
nature  the  vegetation  was  at  an  end ;  but  be  that  as  it  may, 
they  [the  potatoes]  were  to  be  taken  by  the  defendant  imme- 
diately, and  it  was  quite  accidental  if  they  derived  any  farther 
advantage  from  being  in  the  land;"  and  Bay  ley,  J.,  remarked 
that  the  land  was  to  be  considered  as  a  mere  warehouse  till 
the  defendant  could  remove  them.  But  is  it  necessary  to 
the  application  of  the  rule  that  the  produce  bargained  for  be, 
by  the  terms  of  the  contract,  to  be  taken  immediately?  We 
should  hesitate  to  assert  a  fresh  distinction  upon  the  ground 
of  the  casual  use  of  that  expression  by  Lord  Ellenborough. 
The  case  in  which  it  occurs  was  quoted  by  the  judges  in  Evans 
v.  Roberts,3  with  strong  approbation,  without  any  apparent 
apprehension  of  the  materiality  of  the  point  to  the  decision, 
and  they  themselves  decided  the  contract  before  them  to  be 
good,  though  the  crop  bargained  for  was  to  remain  in  the 
land  until  it  was  ripe.  But,  as  is  seen  in  the  next  section, 
the  time  of  removal  does  become  an  important  consideration 
when  the  parties  intend  to  make  a  present  sale  of  the  crop, 
but  stipulate  that  it  shall  remain  on  the  land  for  a  term  of 
years,  or  during  the  pleasure  of  the  purchaser. 

§  248.  Fourthly.  If  the  benefit  of  the  soil  is  contracted  for 
by  the  purchaser  of  the  crop,  if  it  be  in  the  contemplation  of 
parties  that  the  purchaser  shall  use  the  vendor's  land,  in  the 
interval  between  sale  and  delivery,  for  the  purpose  of  raising 
the  crop  which,  when  matured,  is  to  belong  to  the  purchaser, 
then  clearly  the  contract  is  for  an  interest  in  the  land.  It  is 
distinguished  by  form  only  from  a  lease  of  the  land  for  that 
purpose ;  for  it  can  make  no  difference  whether  the  cultivation 
is  to  be  by  the  purchaser  himself,  or  by  his  agent,  the  vendor. 

*  Ante,  §  239. 
«  Ante,  §241. 
8  A  nte,  §  240.  And  in  Jones  i>.  Flint,  post,  §  251. 


324  STATUTE   OF  FRAUDS.  [CH.    XII. 

Lord  Littledale's  language  in  Evans  v.  Roberts  l  is  marked 
to  this  effect :  "  The  legislature  contemplated  an  interest  in 
land  which  might  be  made  the  subject  of  sale.  I  think, 
therefore,  they  must  have  contemplated  the  sale  of  an  inter- 
est which  would  entitle  the  vendee  either  to  the  reversion  or 
to  the  present  possession  of  the  land."  And  Holroyd,  J., 
said  the  plaintiff  "  clearly  had  no  interest  so  as  to  entitle 
him  to  the  possession  of  the  land  for  a  period,  however 
limited,  for  he  was  not  to  raise  the  potatoes." 

§  249.  The  general  rule,  therefore,  furnished  us  by  the 
cases  we  have  had  under  review  would  seem  to  be  this:  If 
by  the  intention  of  the  parties  the  contract  is  to  convey  to 
the  purchaser  a  mere  chattel,  though  it  may  be  in  the  interim 
a  part  of  the  realty,  it  is  not  affected  by  the  statute ;  but  if 
the  contract  is  to  confer  upon  the  purchaser  "  an  exclusive 
right  to  the  land  for  a  time  for  the  purpose  of  making  a  profit 
of  the  growing  surface, "  it  is  affected  by  the  statute  and  must 
be  in  writing,  although  the  purchaser's  profit  may  be  derived 
from  the  sale  of  the  produce  of  the  land  as  a  mere  chattel. 
Whether,  in  a  given  case,  the  parties  do  contemplate  the  use 
of  land,  or  merely  the  sale  of  that  which,  when  delivered, 
will  be  a  mere  chattel,  ought  not,  it  would  seem,  to  present 
much  difficulty.  Notwithstanding  the  emphasis  laid  by 
Bayley,  J.,  in  Evans  v.  Roberts,2  upon  the  fact  that  there  the 
contract  was  not  for  the  sale  of  the  produce  of  any  specific 
part  of  the  land,  it  is  very  clear  that,  if  it  ha,d  been,  the  stat- 
ute would  not  necessarily  have  applied.  There  are  many, 
among  the  cases  quoted,  where,  notwithstanding  this  fact, 
verbal  contracts  were  held  good.  Nor  would  it  seem,  upon 
the  authorities,  that  the  mode  of  payment,  whether  in  a  gross 
sum  for  the  entire  yield,  or  at  so  much  per  cord,  foot,  bushel, 
acre,  etc.,  determines  the  contract  to  be  for  a  sale  of  an  in- 
terest in  the  soil  or  of  a  chattel  only.  If  by  the  contract  the 
purchaser  is  to  own  the  crop  merely,  as  a  chattel  severed 
from  the  realty,  it  is  good  without  writing ;  if  he  is  to  own 
1  Ante,  §  240.  a  Ante,  §  240. 


CH.   XII.]  CONTRACTS   FOR  LAND.  325 

it  while  it  is  growing,  and  is  to  have  the  use  of  the  land  to 
grow  it  in,  then  a  verbal  contract  to  that  effect  is  not  good. 

§  250.  But  there  is  another  doctrine  upon  this  subject 
which  has  attracted  much  favor  of  late  years,  and  that  is  that 
the  application  of  the  statute  is  to  be  determined  by  the  char- 
acter of  the  growing  crop;  verbal  contracts  for  the  fructus 
indmtriales,  or  growing  grain,  vegetables,  etc.,  which  are 
produced  by  periodical  planting  and  culture,  are  at  common 
law  considered  as  emblements,  go  to  the  executor,  and  are 
leviable  in  execution,  being  good ;  and  verbal  contracts  for 
the prima  vestura,  or  growing  trees,  grass,  fruit,  etc.,  which 
at  common  law  go  to  the  heir,  as  of  the  realty,  being  not 
good.  A  brief  review  of  the  cases  quoted  in  support  of  the 
rule  here  suggested  seems  indispensable  to  a  full  understand- 
ing of  the  question. 

§  251.  In  Evans  v.  Roberts,1  both  Bay  ley  and  Littledale, 
JJ.,  allude  to  this  distinction;  the  former  remarking  that  in 
Crosby  v.  Wadsworth  the  contract  was  for  the  "growing  grass 
which  is  the  natural  and  permanent  produce  of  the  land, 
renewed  from  time  to  time  without  cultivation ; "  but  neither 
of  them  professed  to  find  the  distinction  mentioned  therein, 
and  the  case  before  them  was,  as  we  have  seen,  determined 
on  other  grounds.  In  Scorell  v.  Boxall,  decided  in  the 
Exchequer  in  1829,  the  action  was  trespass  for  cutting  down 
and  carrying  away  underwood,  and  the  question  presented 
was  whether  the  plaintiff,  who  had  verbally  purchased  the 
underwood  then  standing,  to  be  cut  by  him,  had  such  a  posses- 
sion as  would  enable  him  to  maintain  the  action.  Chief  Baron 
Alexander  said:  "The  action  in  this  case  proceeds  upon  the 
right  of  property  in  the  plaintiff  to  the  wood  in  question ;  and 
the  contract  by  which  that  right  is  sought  to  be  sustained, 
is  a  mere  parol  contract  for  the  sale  of  growing  underwood, 
part  of  the  freehold,  and  in  direct  violation  of  the  Statute  of 
Frauds. "  a  The  decision  seems  to  be  entirely  tenable  with- 

1  Ante,  §240. 

8  Scorell  p.  Boxall,  1  Young  &  J.  398.  See  the  remarks  of  Wilde,  J., 
on  this  case,  in  Claflin  v.  Carpenter,  4  Met.  (Mass.)  580. 


326  STATUTE  OF  FKAUDS.  [CH.  XH 

out  relying  on  any  distinction  between  underwood  and  any 
other  growth  of  the  soil ;  for  it  was  a  case  of  an  executory 
contract  of  sale,  to  be  completed  by  the  plaintiff's  severing 
the  underwood  from  the  freehold,  and  until  it  was  thus 
severed  it  remained  the  property  of  the  owner  of  the  soil. 
Moreover,  this  case  was  followed  within  two  years  by  Smith 
v.  Surman,1  which  held  that  the  sale  of  standing  trees,  in 
prospect  of  severance  and  to  be  delivered  after  severance,  was 
good  without  writing ;  and  in  that  case  the  argument  of  the 
plaintiff  took  the  same  view  of  Scorell  v.  Boxall,  and  the 
court,  not  mentioning  the  case  in  terms,  adopted  the  reason- 
ing in  the  argument  entirely.  In  Rodwell  v.  Phillips,  a  case 
in  the  Exchequer  in  1842,  the  contract  was  for  the  sale  of  all 
the  growing  fruit  and  vegetables  on  a  certain  part  of  the 
vendor's  close,  for  the  price  of  £30,  the  vendee  to  enter  and 
gather  the  crop  when  it  was  ripe ;  and  the  question  was 
whether  it  was  within  the  statute  55  Geo.  III.  c.  184,  requir- 
ing a  stamp  upon  an  agreement  for  any  interest  in  lands  of 
the  value  of  £20.  It  was  held  that  it  was.  Lord  Abinger, 
C.  B.,  said:  "The  difference  appears  to  be  between  annual 
productions,  raised  by  the  labor  of  man,  and  the  annual  pro- 
ductions of  nature,  not  referable  to  the  industry  of  man, 
except  at  the  period  when  they  were  first  planted ;  "  and 
again :  "  Growing  fruit  would  not  pass  to  an  executor,  but  to 
the  heir ;  it  could  not  be  taken  by  a  tenant  for  life,  or  levied 
in  execution  under  a  writ  of  fi.  fa.  by  the  sheriff;  therefore 
it  is  distinct  from  all  those  cases  where  the  interest  would 
pass,  not  to  the  heir-at-law,  but  to  some  other  person. " 2 

*  Ante,  §  242. 

8  Rodwell  v.  Phillips,  9  Mees.  &  W.  503,  505.  In  making  this  decis- 
ion, the  court  thus  alluded  to  Smith  v.  Surman:  "  Undoubtedly  there  is 
a  case  in  which  it  appears  that  a  contract  to  sell  timber  growing  was  held 
not  to  convey  any  interest  in  the  land,  but  that  was  where  the  parties 
contracted  to  sell  the  timber  at  so  much  per  foot,  and  from  the  nature  of 
that  contract  it  must  be  taken  to  have  been  the  same  as  if  the  parties 
had  contracted  for  the  sale  of  timber  already  felled."  But  a  glance  at 
the  cases  which  have  been  examined  in  the  text  will  show  that  no  weight 
has  been  allowed  in  them  to  the  circumstance  that  the  produce  was  to  be 
sold  by  the  foot  or  bushel,  or  by  the  acre  or  row. 


CH.   XII.]  CONTRACTS   FOR  LAND.  327 

Here  the  action  was  assuinpsit  for  not  permitting  the  plain- 
tiff to  gather  the  crop.  In  Dunne  v.  Ferguson,1  an  Irish 
case,  it  was  trover  for  a  quantity  of  turnips  which  had  been 
gathered  and  carried  away  by  the  defendant,  he  having 
previously,  by  a  verbal  bargain,  sold  the  crop  to  the  plain- 
tiff; the  same  rule  was  followed,  and  the  plaintiff  was  held 
entitled  to  recover.1  Lastly,  in  Jones  v.  Flint,  decided  in 
1839  in  the  Queen's  Bench,  which  was  an  action  of  debt  for 
the  price  stipulated  to  be  paid  for  a  crop  of  corn  on  the  plain- 
tiff's land  and  the  profit  of  the  stubble  afterwards,  some  pota- 
toes growing  on  the  land,  and  whatever  lay  grass  was  in  the 
fields  ;  the  defendant  to  harvest  the  corn  and  dig  the  pota- 
toes; the  plaintiff  to  pay  the  tithe;  and  when  the  crops,  etc., 
were  actually  taken  by  the  defendant,  in  conformity  with  this 
agreement;  it  was  held  that  the  Statute  of  Frauds  did  not 
apply  to  the  contract.  The  opinion  of  the  Chief  Justice, 
Lord  Denman,  while  it  clearly  illustrates  and  perfectly  ac- 
cords with  the  principles  which  we  have  had  occasion  to 
deduce  from  previous  cases,  adopts  in  terms  the  modern  dis- 
tinction founded  upon  the  nature  of  the  crop.  He  observes, 
first,  that  at  the  time  of  the  contract  the  crops  were  not  ripe, 
though  nearly  so,  and  that  there  was  some  dispute  as  to 
whether  the  sale  was  by  the  acre  or  not,  and  that  nothing 
was  expressly  agreed  on  as  to  the  possession  of  the  land; 
again,  that  there  were  three  things  contracted  for,  —  corn, 
potatoes,  and  the  after-eatage  of  stubble  and  lay  grass.  "  Of 
these,"  he  says,  "all  but  the  lay  grass  are  fructus  indus- 
triales :  as  such,  they  are  seizable  by  the  sheriff  under  &  fieri 
facias,  and  go  to  the  executor,  not  to  the  heir.  If  they  had 
been  ripe  at  the  date  of  the  contract,  it  may  be  considered 
now  as  quite  settled  that  the  contract  would  have  been  held 
to  be  a  contract  merely  for  the  sale  of  goods  and  chattels. 
And  although  they  had  still  to  derive  nutriment  from  the  land, 
yet  a  contract  for  the  sale  of  them  has  been  determined,  from 
this  their  original  character,  not  to  be  on  that  account  a  con- 

1  Dunne  v.  Ferguson,  1  Hayes  540. 


328  STATUTE  OF  FEAUDS.  [CH.  XIL 

tract  for  the  sale  of  any  interest  in  land. "  He  then  says : 
"We  agree  that  the  safer  grounds  of  decision  are  the  legal 
character  of  the  principal  subject-matter  of  sale,  and  the 
consideration  whether,  in  order  to  effectuate  the  intentions 
of  the  parties,  it  be  necessary  to  give  the  vendee  an  interest 
in  the  land.  Tried  by  those  tests,  we  think  that,  if  the  lay 
grass  be  excluded,  the  parties  must  be  taken  to  have  been 
dealing  about  goods  and  chattels.  ...  It  is  very  difficult  to 
reconcile  all  the  cases,  and  still  more  so  all  the  dicta,  on  this 
subject  from  the  case  of  Waddington  v.  Bristow  to  the  pres- 
ent time;  and  we  are,  therefore,  at  liberty  to  abide  by  a 
general  principle."  And  he  adds,  referring  to  Crosby  v. 
Wadsworth,  that  if  the  present  was  a  case  in  which  the  par- 
ties intended  a  sale  and  purchase  of  the  grass  to  be  mown  or 
fed  by  the  buyer,  both  on  principle  and  authority  the  contract 
must  be  held  within  the  statute.  Then  he  examines  the 
facts,  and  inasmuch  as  it  was  doubtful  whether  what  could 
be  called  a  crop  of  grass,  was  in  the  ground,  or  in  the  con- 
templation of  the  parties  at  all,  and  the  plaintiff  was  to  pay 
the  tithe  and  resume  the  right,  after  the  harvesting,  to  turn 
his  own  cattle  into  the  field,  he  says,  "  We  think  that,  how- 
ever expressed,  the  more  reasonable  construction  of  the  con- 
tract is  that  the  possession  of  the  field  still  remained  with 
the  owner  after  harvesting,  as  before ; "  and  adds,  "  Upon 
these  grounds,  not  impeaching  the  principle  of  Crosby  v. 
Wadsworth,  but  deciding  on  the  additional  facts  in  this  case, 
we  think  this  incident  in  the  contract  does  not  alter  its 
nature;  and  the  objection  founded  on  the  statute  will  not 
prevail. " l 

1  Jones  v.  Flint,  10  Ad.  &  E.  753.  In  Teal  v.  Auty,  4  Moo  542,  it 
was  said  that  a  contract  for  poles,  made  when  they  were  growing,  was  a 
contract  for  an  interest  in  land;  but  there  the  contract  was  executed,  and 
the  sale  being  made  by  one  who  had  previously  purchased  them  and  thus 
severed  them  in  law  from  the  land,  they  could  no  longer  be  regarded  in 
any  view  as  making  part  of  the  realty.  See  Sugden  on  Vendors  and 
Purchasers,  110,  and  ante,  §  236,  as  to  what  works  such  a  severance  in 
law ;  and  Yale  v.  Seeley,  15  Vt.  221.  In  Carrington  v.  Roots,  2  Mees.  & 


CH.    XII.]  CONTRACTS   FOR   LAND.  329 

§  252.  It  is  not  to  be  denied  that  there  thus  appears  a  very 
strong  tendency  to  stand  upon  the  distinction  between  the 
prima  vestura  and  fructus  industrials,  as  conclusive  of  these 
questions  on  sales  of  crops.  Of  the  four  cases  which  have 
been  referred  to  under  that  head,  however,  Evans  v.  Roberts 
was  decided  on  another  ground;  Rod  well  v.  Phillips  was  not 
upon  the  Statute  of  Frauds ;  and  Jones  v.  Flint  was,  it  ap- 
pears, perfectly  determinable  without  resorting  to  that  dis- 
tinction. With  the  greatest  deference,  it  must  be  said  that 
throughout  these  cases  there  appears  to  have  been  an  entire 
misconception  of  the  true  doctrine  of  Crosby  v.  Wadsworth. 
That  Lord  Ellenborough  did  not  intend  in  that  case  to  say 
that  a  sale  of  growing  trees,  to  be  delivered  separated  from 
the  soil,  was  void  unless  in  writing,  is  manifest  from  the 
fact  that,  though  he  alluded  afterwards  to  that  decision  sev- 
eral times,  he  never  intimated  that  it  rested  upon  the  cir- 
cumstance of  the  nature  of  the  growth,  but  especially  from 
the  fact  that  an  early  decision  of  Chief  Justice  Treby,  which 
was  to  the  contrary,  and  upon  which  much  stress  was  laid 
in  the  argument,  was  not  alluded  to  in  his  decision. 

§  253.  That  case  is  thus  given  by  Lord  Raymond.  "  Treby, 
C.  J.,  reported  to  the  other  justices  that  it  was  a  question 
before  him  in  a  trial  at  nisi  prius  at  Guildhall,  whether  the 
sale  of  timber  growing  upon  the  land  ought  to  be  in  writing 
by  the  Statute  of  Frauds,  or  might  be  by  parol.  And  he  was 
of  opinion,  and  gave  the  rule  accordingly,  that  it  might  be 
by  parol,  because  it  is  but  a  bare  chattel.  And  to  this  opinion 
Powell,  J.,  agreed."1 

W.  248,  which  was  on  a  verbal  agreement  for  the  sale  of  grass,  at  so 
much  an  acre,  to  be  taken  by  the  purchaser,  the  court  held  that  if  it  was 
for  goods,  etc.,  it  was  void  by  the  seventeenth  section,  and  if  it  was  for 
land  it  was  void  by  the  fourth;  but  no  point  was  made  as  to  the  subject- 
matter  being  prima  vestura. 

1  Reported  anonymously  in  1  Ld.  Raym.  182.  This  case  is  pronounced 
by  Mr.  Baron  Hullock  in  Scorell  v.  Boxall,  1  Young  &  J.  396,  to  amount 
to  a  mere  dictum.  It  certainly  has  the  appearance  of  an  actual  decision 
at  nisi  prius,  but  reported  at  second  hand.  It  is  quoted  as  an  authority 


330  STATUTE   OF  FKAUDS.  [CH.   XII. 

§  254.  But  it  would  seem  that  even  those  cases  in  which 
cultivated  crops  have  been  held  capable  of  being  sold  without 
writing  have  proceeded  upon  grounds  inconsistent  with  this 
modern  doctrine.  The  judges  have  uniformly  paid  attention 
to  the  fact  that  these  crops  were  to  be,  when  the  contract  was 
consummated,  separated  from  the  ground  and  therefore  mere 
chattels.1  Again,  it  is  well  settled  that,  if  those  crops  which 
are  fructus  industrials  growing  on  land  are  purchased  with 
the  land  and  by  one  entire  contract,  they  are  considered  as 
part  of  the  land,  and  no  recovery  can  be  had  upon  a  special 
valuation  of  the  crops.2 

§  254  a.  In  the  case  of  Marshall  v.  Green,3  in  the  Common 
Pleas  Division  of  the  English  High  Court  of  Justice,  in 

by  Mr.  Justice  Holroyd  in  Mayfield  v.  Wadsley,  3  Barn.  &  C.  357.  Also 
by  Mr.  Roberts  in  his  Treatise  on  the  Statute  of  Frauds,  who  bases  upon 
it  the  precise  doctrine  to  which  it  is  quoted  in  the  text.  Also  by  the 
Supreme  Court  of  Massachusetts,  in  Claflin  v.  Carpenter,  4  Met.  580, 
where  Mr.  Justice  Wilde  speaks  of  it  as  the  leading  case  on  this  point. 
To  these  add  the  high  authority  of  Sir  Edward  Sugden,  who  approves  it 
and  says  it  ought  not  to  have  been  lightly  overruled.  Law  of  Vendors 
and  Purchasers,  110. 

1  See,  in  addition  to  the  cases  which  have  been  examined  in  the  text, 
that  of  Watts  v.  Friend,  10  Barn.  &  C.  446,  where  A.  agreed  to  supply 
B.  with  a  quantity  of  turnip-seed,  and  B.  agreed  to  sell  the  crop  of  seed 
produced  therefrom  at  one  shilling  per  bushel,  and  Lord  Tenterden  held 
it  was  not  a  contract  for  an  interest  in  land,  for  "  the  thing  agreed  to  be 
delivered  would,  at  the  time  of  delivery,  be  a  personal  chattel." 

8  Earl  of  Falmouth  v.  Thomas,  1  Cromp.  &  M.  89.  In  Mayfield  ». 
Wadsley,  3  Barn.  &  C.  365,  Littledale,  J.,  said:  "  If  the  giving  up  of 
the  land  was  any  part  of  the  consideration  for  the  defendant's  agreeing  to 
take  the  wheat  which  was  then  sown  in  the  land,  the  wheat  must  be  con- 
sidered ax  part  of  the  land  itself.  .  .  .  Where  the  land  is  agreed  to  be  sold, 
and  the  vendee  takes  from  the  vendor  the  growing  crops,  the  latter  are 
considered  part  of  the  land.  ...  A  parol  agreement  for  the  sale  of  crops 
may  be  good,  also,  between  the  outgoing  and  the  incoming  tenant ;  but 
then  there  would  be  no  sale  of  any  interest  in  the  land,  for  that  would 
come  from  the  landlord."  See  further,  on  this  subject,  Mechelen  v.  Wal- 
lace, 7  Ad.  &  E.  49;  Vaughan  v.  Hancock,  3  C.  B.  766;  Foquet  v  Moor, 
7  Exch.  870;  Thayer  v.  Rock,  13  Wend.  (N.  Y.)  53;  Brantom  v.  Griffits, 
1  C.  P.  D.  349. 

8  Marshall  ».  Green,  1  C.  P.  D.  35. 


CH.    XII.]  CONTRACTS   FOR   LAND.  331 

1875,  the  distinction  between  fructus  naturales  and  fructus 
industrials,  as  a  test  of  the  application  of  the  Statute  of 
Frauds,  has  been  substantially  rejected,  and  the  decision  of 
Treby,  C.  J.,  approved  and  followed.  The  declaration  con- 
tained three  counts,  for  trespass  by  injury  to  the  plaintiff's 
realty,  for  trover  for  carrying  away  cut  trees,  and  for  injury 
to  the  plaintiff's  reversion.  Amphlett,  B.,  before  whom  the 
case  was  tried  without  a  jury,  found  the  following  facts. 
The  plaintiff  was  the  owner  in  fee  of  a  copyhold  tenement 
upon  which  certain  timber  trees  were  growing.  This  tene- 
ment was  leased,  but  the  trees,  by  the  custom  of  the  manor, 
were  reserved  to  the  owner  of  the  fee.  He  entered  into 
negotiation  with  the  defendant  for  the  sale  of  certain  of  the 
trees,  and  there  was  finally  "a  parol  sale  of  twenty-two  of 
the  trees,  at  the  price  of  X26,"1  with  the  understanding  that 
they  were  to  be  taken  away  as  soon  as  possible.  After  some 
of  the  trees  had  been  cut  down,  the  plaintiff  attempted  to  set 
aside  the  sale,  and  forbade  the  defendant  to  proceed  under  it ; 
but  the  latter  entered,  cut  down  the  rest  of  the  trees,  and 
subsequently  removed  them.  For  this  entry  and  removal  the 
action  was  brought.  It  was  assumed,  both  by  the  counsel  in 
their  argument  and  the  court  in  their  opinions,  that  the  in- 
tention of  the  parties  was  that  the  title  to  the  trees  should 
pass  presently,  i.  e.,  at  the  time  of  the  sale  and  before  sever- 
ance ;  and  it  will  be  seen,  therefore,  that  one  of  the  questions 
squarely  presented  for  decision  was,  whether  standing  trees, 
clearly  not  fructus  industriales,  could  be  sold  standing,  as 
goods,  wares,  and  merchandise.  The  court,  in  opinions 
delivered  seriatim,  held  that  they  could  be  and  were  so  sold 
in  the  present  case;  that  the  seventeenth  section  was  com- 
plied with  by  acceptance  and  receipt  of  part  of  them.  The 
plaintiff  therefore,  it  was  held,  had  no  property  in  the  trees, 
and  could  not  recover,  the  defendant's  entry  to  take  his  own 
property  being  justifiable. 

§  254  b.  It  remains  to  notice  the  effect  of  this  decision 

1  Per  ColerHge,  J.,  at  page  38  of  the  Law  Report. 


332  STATUTE  OF  FRAUDS.  [CH.  XIL 

upon  the  questions  previously  discussed.  It  will  be  seen, 
first,  that  the  judges  have  entirely  disregarded  any  distinction 
founded  upon  the  character  or  nature  of  the  crop ;  or  upon 
the  time  when  the  title  passes,  whether  it  is  before  or  after 
the  crop  is  severed  from  the  soil.  Those  tests  had,  it  is 
true,  the  sanction  of  previous  decisions,  but  neither  of  them 
had  proved  satisfactory  or  been  uniformly  followed.  The 
doctrine  which  laid  down  one  rule  for  the  sale  of  fructus 
naturales,  and  another  for  the  sale  of  fructus  industriales,  is 
objectionable,  because  founded  narrowly  upon  considerations 
of  the  ownership  of  the  crop,  not  at  all  upon  consideration  of 
the  conditions  of  the  sale.  The  technical  rules  which  govern 
the  respective  claims  to  the  produce  of  land  of  its  owner  and 
its  lessee  are  of  necessity  based  upon  grounds  very  different 
from  those  to  be  considered  when  the  question  is  as  to  the 
nature  of  a  certain  transaction  of  sale,  whether  it  be  of  lands 
or  goods.  Because  as  between  lessor  and  lessee  certain 
products  of  the  land  "  went  with  it "  by  the  technical  rule  of 
emblements,  it  does  not  follow  by  any  necessary  logical  conse- 
quence that  such  products  are  land  at  all  times  and  under 
all  circumstances. 

§  254  c.  The  case  is  further  noticeable,  as  deciding  that 
the  owner  of  the  produce  of  land  can,  if  he  wishes,  sell  it  as 
it  stands,  by  an  oral  sale,  as  so  much  goods,  wares,  and  mer- 
chandise. While  it  has  always  been  admitted  that  no  inter- 
est in  land  was  conveyed  where  the  parties  intended  that  the 
title  in  the  crop  should  not  pass  till  it  had  been  severed  from 
the  realty,1  yet  there  seemed  to  be  a  difficulty  in  those  cases 
where  the  crops  were  sold  standing,  and  from  the  language 
of  some  of  the  decisions  it  might  be  inferred  that  parties  can- 
not, under  such  circumstances,  pass  the  title  presently  by  a 
parol  contract.  But  when  the  fact  appears  that  the  parties 
have  dealt  with  the  crops  as  so  much  produce,  or  goods  now 
stored  and  ready  for  sale,  it  seems  clear  that  the  accidental 

i  Boyce  w.  Washburn,  4  Hun  (N.  Y.)  792 ;  White  v.  Foster,  102  Mass. 
375. 


CH.   XII.]  CONTRACTS   FOR  LAND.  333 

support  given  by  the  soil  cannot  of  itself  be  an  objection  to 
the  accomplishment  of  their  sale  in  the  ordinary  manner  of 
sales  of  goods.  The  court,  therefore,  found  no  difficulty  in 
holding  that  the  trees  were  sold  as  they  stood,  and  as  so  much 
lumber.  They  gave  effect  to  the  intention  of  the  parties  as 
gathered  from  the  facts  of  the  case,  which  manifestly  was  to 
sell  and  buy  goods,  wares,  and  merchandise,  and,  finding  the 
seventeenth  section  of  the  statute  complied  with,  upheld  and 
enforced  the  contract,  and  the  transfer  of  title  under  it. 

§  255.  In  the  case  of  Whitmarsh  v.  Walker,  in  Massachu- 
setts, the  defendant  verbally  agreed  to  sell  to  the  plaintiff  at 
a  stipulated  price  two  thousand  mulberry  trees  then  growing 
in  the  defendant's  close.  The  plaintiff  paid  a  small  sum  at 
the  time,  and  was  to  pay  the  remainder  on  the  delivery  of  the 
trees,  which  was  to  be  on  demand.  The  defendant  refused 
to  carry  out  the  agreement,  and  it  was  insisted  that  it  was 
not  binding,  being  for  the  sale  of  an  interest  in  land  within 
the  meaning  of  the  statute.  Wilde,  J.,  delivering  the  opin- 
ion of  the  court,  remarked,  that  the  contract  of  sale  was  not 
to  be  considered  as  consummated  at  the  time  of  the  agree- 
ment ;  the  delivery  was  to  be  at  a  future  day,  and  the  defend- 
ant was  not  bound  to  deliver  unless  the  plaintiff  was  ready 
and  willing  to  pay;  that  no  property  vested  in  the  plaintiff 
by  the  agreement.  He  adds:  "According  to  the  true  con- 
struction of  the  contract,  as  we  understand  it,  the  defendant 
undertook  to  sell  the  trees  at  a  stipulated  price,  to  sever  them 
from  the  soil,  or  to  permit  the  plaintiff  to  sever  them,  and  to 
deliver  them  to  him  on  demand;  he  at  the  same  time  paying 
the  defendant  the  residue  of  the  price.  And  it  is  immaterial 
whether  the  severance  was  to  be  made  by  the  plaintiff  or  by 
the  defendant.  For  a  license  for  the  plaintiff  to  enter  and 
remove  the  trees  would  pass  no  interest  in  the  land,  and 
would  without  writing  be  valid  notwithstanding  the  Statute 
of  Frauds."  In  this  case  the  contract  was  made  enforceable 
by  part  payment  of  the  price  of  the  trees,  and  the  plaintiff 
had  damages  for  the  defendant's  refusal  to  deliver  as  he  had 


334  STATUTE   OF  FRAUDS.  [CH.    XII 

agreed.1  In  the  next  case,  Claflin  v.  Carpenter,  the  opinion 
of  Treby,  C.  J.,  that  growing  timber  might  be  sold  without 
writing,  is  cited  as  an  authority  and  the  leading  one  on  this 
subject,  and  fully  adopted,  and  the  criticism  of  Hullock,  B., 
upon  it,  in  Scorell  v.  Boxall,  distinctly  disapproved.  But 
while  disregarding  to  this  extent  the  technical  nature  of  the 
crop  as  a  part  of  the  realty,  the  Massachusetts  courts  still 
hold  that  the  oral  contract,  if  it  is  intended  to  pass  a  present 
title  to  the  standing  crop,  is  ex  proprio  vigore  for  an  interest 
in  land,2  thus  differing  in  an  important  feature  from  Marshall 
v.  Green.  It  is  also  held  that  before  the  severance  the  owner 
may  revoke  the  license  to  enter  and  sever  under  the  contract, 
and  that  the  purchaser,  having  no  title  in  what  remains  un- 
severed,  will  have  no  right  to  enter  and  sever  it.3  His  only 
remedy  will  be  for  the  breach  of  the  contract,  as  in  Whit- 
marsh  v.  Walker,  supra. 

§  255  a.  The  doctrine  of  Marshall  v.  Green  had  been  pre- 
viously declared  and  acted  upon  in  Maine,4  Kentucky,5  Mary- 
land,6 and  perhaps  Connecticut  and  Pennsylvania.7 

§  256.  The  rule  based  upon  the  nature  of  the  crop  sold, 
whether  fructus  naturahs  orfructus  industriales,  under  which 

1  Whitmarsh  v.  Walker,  1  Met.  313. 

2  Claflin  v.   Carpenter,  4  Met.  580;  Giles  v.   Simonds,  15  Gray  441. 
And  see  Knox  v.  Haralson,  2  Tenn.  Ch.  232. 

8  Poor  v.  Oakman,  104  Mass.  309;  Drake  v.  Wells,  11  Allen  141;  Giles 
v.  Simonds,  15  Gray  441. 

4  Cutler  v.  Pope,  13  Me.  377.  See  Safford  v.  Annis,  7  Greenl.  168; 
Erskine  v.  Plummer,  7  Greenl.  447. 

6  Cain  v.  McGuire,  13  B.  Mon.  340 ;  Byassee  v.  Reese,  4  Met.  372. 

6  Smith  v.   Bryan,  5  Md.   151,  in  which  the  Court  of  Appeals  said: 
"  The  principle  to  be  gathered  from  a  majority  of  the  cases  seems  to  be 
this,  that  where  timber  or  other  produce  of  the  land,  or  any  other  thing 
annexed  to  the  freehold,  is  specifically  sold,  whether  it  is  to  be  severed 
from  the  soil  by  the  vendor,  or  to  be  taken  by  the  vendee,  under  a  special 
license  to  enter  for  that  purpose,  it  is  still,  in  the  contemplation  of  the 
parties,  evidently  and  substantially  a  sale  of  goods  only." 

7  See  Bostwick  v.  Leach,  3  Day  476;  McClintock's  Appeal,  71  Pa.  St. 
365.     See  also  Heflin  v.  Bingham,  56  Ala.  566 ;  Harris  v.  Powers,  57  Ala. 
139;  Kerr  v.  Hill,  27  W.  Va.  605. 


CH.   XII.]  CONTRACTS  FOR  LAND.  335 

an  oral  sale  of  the  latter  is  held  sufficient,  but  of  the  former 
insufficient,  to  pass  the  title  before  severance,  has  been  dis- 
tinctly approved  in  New  Hampshire,1  New  York,2  New  Jersey,8 
Indiana,4  California,5  Tennessee,6  Missouri,7  and  Ohio.8 

§  257.  The  Supreme  Court  of  Vermont  asserted  the  earlier 
English  doctrine,  after  much  consideration,  in  the  following 
case.  The  plaintiff  had  purchased  by  verbal  contract,  for  a 
gross  sum,  all  the  timber  standing  on  a  particular  part  of  the 
land  of  one  Story,  with  liberty,  for  an  indefinite  time,  to  enter 
and  take  it  off.  The  land  passed  from  Story,  through  a  long 
series  of  deeds,  to  the  defendant,  whose  deed  from  his  imme- 
diate grantor  contained  no  reservation  as  to  the  trees  in 
question.  The  defendant,  more  than  twenty  years  after  the 
contract  of  Story  with  the  plaintiff,  and  after  the  plaintiff 
had  cut  and  removed  some  of  the  trees,  cut  and  removed  the 
remainder,  and  for  this  the  action  was  brought,  i.  e.  "  trespass 
for  cutting  down  growing  trees  of  the  plaintiff. "  It  was  held 
that  it  would  not  lie.  Bennett,  J.,  who  delivered  the  opinion 
of  the  court,  quotes  the  English  cases  setting  up  the  distinc- 
tion between  the  prima  vestura  and  fructus  industrials  as 
decisive  of  the  question  whether  the  statute  applies,  and 

*  Howe  v.  Batchelder,  49  N.  H.  204;  Kingsley  v.  Holbrook,  45  N.  H. 
313;  Putney  v.  Day,  6  N.  H.  430. 

2  Green  v.  Armstrong,  1  Denio  550;  Warren  i>.  Leland,  2  Barb.  613. 
See  Bank  of  Lansingburgh  v.  Crary,  1  Barb.  542.  And  the  Court  of 
Appeals  of  that  State  have  gone  so  far  as  to  hold  that  poles  used  neces- 
sarily in  cultivating  hops,  which  were  taken  down  for  the  purpose  of 
gathering  the  crop  and  piled  in  the  yard,  to  be  replaced  in  the  season  of 
hop  raising,  were  a  part  of  the  real  estate.  Bishop  v.  Bishop,  1  Kernan 
123.  And  see  Frank  v.  Harrington,  36  Barb.  415. 

8  Slocum  v.  Seymour,  36  N.  J.  L.  138.  See  Westbrook  v.  Eager,  1 
Harr.  81;  Thompson  v.  Tilton,  34  N.  J.  Eq.  306. 

4  Owens  v.  Lewis,  46  Ind.  488;  Armstrong  v.  Lawson,  73  Ind.  498. 
And  see  Kluse  v.  Sparks,  36  N.  E.  Rep.  (Ind.)  914. 

6  Vulicevich  v.  Skinner,  77  Cal.  239. 

8  Carson  v.  Browder,  2  B»  J.  Lea  (Tenn.)  701.  And  see  Powers  r 
Clarkson,  17  Kansas  218. 

7  Smook  v.  Smock.  37  Mo.  App.  56. 

8  Hirth  v.  Graham,  50  Ohio  St.  57. 


336  STATUTE    OF   FRAUDS.  [CH.    XII. 

assents  to  them.  But  he  remarks,  at  the  close  of  his  judg- 
ment, that  in  Scorell  v.  Boxall  (the  authority  principally 
relied  on)  "the  action  was  substantially  based  on  title,  and 
the  title  wholly  dependent  on  the  verbal  contract,  which  was 
inoperative  to  convey  a  right. " 1  The  case  before  the  court 
was  undoubtedly  decided  correctly,  the  action  being  based  on 
title,  and  the  trespass  being  complained  of  as  committed  in 
respect  of  growing  trees  of  the  plaintiff.  In  a  later  case  in 
that  State  the  court,  while  recognizing  the  correctness  of  the 
decision  last  cited,  say,  "  We  are  not  supposed  to  give  that 
opinion  the  force  of  authority  beyond  the  very  point  of  judg- 
ment," and  at  the  same  time  express  a  decided  disposition 
to  sanction  the  broader  rule,  that  either  fructus  naturales  or 
fructus  industrials  could  be  sold  in  the  ground  as  goods, 
wares,  and  merchandise,  if  such  were  the  nature  of  the  con- 
tract and  the  intention  of  the  parties.2 

§  257  a.  In  most  of  those  States  which  have  extended  the 
validity  of  the  oral  contract  in  passing  the  title  before  sever- 
ance to  sales  of  the  annual  produce  of  land,  the  question 
whether  the  oral  contract  would  be  in  like  manner  valid  in 
the  case  of  natural  growth  has  not  been  decided.  In  those 
States  where  it  has  been  decided,  the  results  are  conflicting; 
the  Supreme  Court  of  New  York,  on  the  one  hand,  holding 
that  the  oral  contract  of  sale  in  the  case  of  natural  growth 
is  not  effectual  to  pass  the  title  before  severance,3  and  the 
courts  of  Vermont  and  Pennsylvania,  on  the  other  hand, 
manifesting  a  disposition  to  treat  such  contracts  as  effectual 
for  that  purpose.4  There  is  an  evident  uncertainty  in  the 

1  Buck  v.  Pickwell,  27  Vt.  157.     See  Daniels  ».  Bailey,  43  Wise.  566: 
Lillie  P.  Dunbar,  62  Wise.  198. 

2  Sterling  v.  Baldwin,  42  Vt.  306;  and  see  Fitch  v.   Burk,  38  Vt.  687. 
8  Lawrence  v.  Smith,  27  How.  Pr.  327;  Wood  v.  Shultis,  4  Hun  309; 

and  see  Kill  more  v.  Howlett,  48  N.  Y.  569,  per  Gray,  C.  Dicta  to  the 
same  effect  in  Slocum  v.  Seymour,  36  N.  J.  L.  138;  Owens  v.  Lewis,  46 
Ind.  488. 

4  See  cases  cited  in  note  to  §  257.  Also  McClintock's  Appeal,  71  Pa. 
St.  365. 


CH.   XII.]  CONTEACTS   FOR  LAND.  337 

dealing  of  the  courts  with  this  subject,  from  which  there 
appears  to  be  no  relief  but  by  keeping  steadily  in  view  the 
question  whether  or  not  the  contract  of  purchase  involves, 
either  by  express  stipulation  or  by  fair  implication  from  the 
circumstances,  an  agreement  that  the  buyer  shall  have  the 
right  to  occupy  or  enter  upon  the  land  during  a  definite  or 
indefinite  time  after  the  bargain.  Where  such  an  agreement 
makes  part  of  the  transaction,  it  seems  clear  that  an  interest 
in  land  is  contracted  for  and  agreed  to  be  given.1  But  where, 
as  in  Marshall  v.  Green,2  there  is  no  agreement  that  the 
goods  shall  remain  on  the  vendor's  land,  the  vendee's  right 
to  come  in  and  take  away  what  he  has  bought  not  depending 
upon  any  contract  or  agreement,  but  being  a  mere  incident 
of  his  purchase  arising  by  implication  of  law,  and  not  sub- 
ject to  revocation  by  the  owner  of  the  land,  the  contract  is 
for  the  sale,  not  of  land,  but  of  goods,  and  this  indepen- 
dently of  the  nature  of  the  growth  sold. 

§  258.  The  impression  appears  to  have  prevailed  at  one 
time  that  shares  in  incorporated  or  joint-stock  companies, 
whose  profit,  and  the  consequent  value  of  the  shares  held 
by  the  several  stockholders,  were  derived  from  the  use  and 
ownership  of  real  property,  were  themselves  to  be  deemed  an 
interest  in  or  concerning  land,  so  as  not  to  be  capable  of  pur- 
chase and  sale  without  a  memorandum  in  writing,  as  required 
by  the  fourth  section  of  the  Statute  of  Frauds.  The  doctrine 
is  stated  with  some  confidence  by  Mr.  Roberts,  at  least  as 
applied  to  shares  in  canal  navigations  and  all  species  of  tolls.3 
And,  in  part  upon  his  authority,  it  was  determined  in  an  early 
case  in  Connecticut  that  shares  in  a  turnpike  company  which 
had  power  by  its  charter  to  make  and  maintain  a  road  and 
collect  a  toll  thereon  were  real  estate,  and  were  not  subject 
to  testamentary  disposition  by  a  testator  not  qualified  to 
devise  real  estate,  notwithstanding  that  their  right  of  taking 

i  See  Sterling  v,  Baldwin,  42  Vt.  306. 
3  Marshall  »>.  Green,  1  C.  P.  D.  35,  per  Coleridge,  J. 
8  Roberts  on  Frauds,  126. 
22 


338  STATUTE   OF  FRAUDS.  [CH.   XII. 

toll  was  limited  to  the  reimbursement  of  expenses  and  inter- 
est.1 These  opinions,  however,  are  founded  principally  on 
the  case  of  Townsend  v.  Ash,2  where  Lord  Hardwicke  held 
shares  in  the  New  River  Corporation  to  be  real  estate ;  and 
that  case  has  been  since  explained  in  the  important  decision 
of  Bligh  v.  Brent,  in  the  Court  of  Exchequer,3  as  proceeding 
on  the  ground  that  there  the  individual  corporators  owned 
the  property,  and  the  corporation  only  had  the  management 
of  it.  In  a  later  case  in  the  same  court,  Bligh  v.  Brent  has 
been  affirmed  and  the  law  finally  settled  on  this  point.  The 
opinion  of  Martin,  B.,  is  very  clear  and  satisfactory.  After 
remarking  that  all  the  great  railway  companies,  canal  com- 
panies, and  dock  companies  possessed  laud  to  a  very  great 
extent  and  value,  and  that  land  or  real  property  was  the  main 
substratum  of  their  joint-stock  or  partnership  property,  and 
their  profits  directly  obtained  from  its  use,  he  says:  "The 
shareholder  has  only  the  right  to  receive  the  dividends  pay- 
able on  his  share,  that  is,  a  right  to  his  just  proportion  of  the 
profits  arising  from  the  employment  of  the  joint  stock,  con- 
sisting indeed  partly  of  land ;  but  whilst  he  holds  his  share 
he  has  no  interest  or  separate  right  to  the  land,  or  any  part 
of  it.  He  is,  indeed,  interested  in  the  employment  of  it ;  but 
he  cannot  proceed  against  it  directly  for  anything  which  is 
due  to  him,  or  make  any  part  of  it  his  own  for  the  purpose 
of  satisfying  any  demand  which  he  may  have  as  shareholder. 
He  is  not  in  the  situation  of  a  mortgagee,  who  has  a  direct 
interest  in  the  land;  or  of  a  joint  tenant  or  tenant  in  com- 
mon, who  may  make  a  part  of  it  his  own  in  severalty.  Upon 
a  dissolution  or  determination  of  the  joint  concern,  he  may 
possibly,  though  not  very  probably,  become  the  owner  of  a 
part  or  share  in  the  land ;  but  if  he  does,  it  is  not  by  virtue 
of  any  term  in  the  partnership  agreement  [or  act  of  incorpo- 

1  Wells  v.  Cowles,  2  Conn.  567. 

2  Townsend  v.   Ash,  3  Atk.  336;   Drybutter  v.  Bartholomew,  2  P. 
Wms.  127. 

»  Bligh  v.  Brent,  2  Y.  &  C.  268. 


CH.    XII.]  CONTRACTS   FOR   LAND.  339 

ration],  but  upon  a  new  transaction  whereby  the  parties  to 
the  joint  concern  may,  by  virtue  of  a  new  contract,  become 
separate  owners  of  separate  shares  in  the  land  belonging  to 
it.  Upon  his  death  nothing  descends  to  his  heir;  all  goes  to 
his  personal  representative,  whether  the  land  be  held  for 
years  or  in  fee-simple,  and  his  representative  acquires  no 
interest  in  the  land  different  from  what  he  himself  had,  .  .  . 
Land  is  merely  a  part  of  the  joint-stock  capital,  and  the  real 
substantial  interest  of  the  shareholder  and  that  which  the 
share  represents  is  the  participation  in,  and  right  to  partici- 
pate in,  the  profits. " J  Upon  this  case  and  those  which  are 
referred  to  in  the  opinions  of  the  judges,  it  must  be  con- 
sidered as  now  settled  that  shares  in  companies  owning  land 
are  not  necessarily  themselves  interests  in  land,  whether  the 
companies  be  incorporated  or  joint-stock,  or  whether  they  be 
for  mining,  railway,  canal,  banking,  or  any  other  purpose.2 
§  259.  Where  land  is  owned  by  a  partnership,  each  partner, 
of  course,  is  entitled  to  his  proper  share  in  it.  And  here  must 
be  remarked  an  important  exception  (for  so  it  seems  we  are 
forced  to  regard  it)  to  the  operation  of  the  statute  as  it  affects 

1  Watson  r.  Spratley,  10  Exch.  236. 

2  See  Hilton  v.  Giraud,  1   De  G.  &  Smale  183;    Sparling  ».  Parker, 
9  Beav.  450;  Myers  v.  Perigal,  11  C.  B.  90;  Duncuft  ».  Albrecht,  12  Sim. 
189;  Bradley  v.  Holdsworth,  3  Mees.  &  W.  422;  Humble  v.  Mitchell,  11 
Ad.  &  E.  205;    Curling  v.  Flight,  5  Hare  242;  Vauxhall  Bridge  Co., 
ex  parte,  1  Glyn  &  J.  101  ;  Home,  ex  parte,  7  Barn.  &  C.  632.     For  a  re- 
cent analogous  decision  under  the  Statute  of  Mortmain,  see  Entwistle  v. 
Davis,  L.  R.  4  Eq.  272;  and  see  also  Robinson  v.  Ainge,  L.  R.  4  C.  P. 
429.     Many  stock  companies  have  been  formed  in  England  under  statutes 
expressly  providing  that  the  stock  "  shall  be  personal  estate,  and  shall  not 
be  of  the  nature  of  real  estate."    See  Agnew,  Statute  of  Frauds,  pp.  147- 
151,  where  the  English  cases  under  these  statutes  are  collected.     See 
Johns  v.  Johns,  1  Ohio  St.  350.     It  was  early  held  in  Massachusetts  that 
the   shares  in  a  turnpike   corporation  were  personal  property   simply. 
Tippets  v.  Walker,  4  Mass.  595.     But  qucere,  if  the  law  in  New  York  is 
not  different  from  that  stated  in  the  text.   Vaupell  v.  Woodward,  2  Sandf. 
Ch.  143.     In  England,  the  Court  of  Common  Pleas  have  acted  upon  the 
authority  of  Watson  r.  Spratley,  though  declining  to  commit  themselves 
to  its  correctness.     Powell  v.  Jessopp,  18  C.  B.  336. 


340  STATUTE    OF   FRAUDS.  [CH.   XIL 

interests  in  land.  Where  two  men  are  found  jointly  occupy- 
ing a  piece  of  land,  incurring  equal  expenditures  upon  it  and 
enjoying  equal  profit  from  it,  the  relation  which  from  such 
facts  would  be  presumed  to  be  existing  between  them  is  that 
of  joint  tenancy,  and,  as  incident  to  that  joint  tenancy,  upon 
the  death  of  either  the  whole  would  go  to  the  other  by  right 
of  survivorship.  And  naturally  we  should  say  that  any  agree- 
ment by  which  the  course  of  the  estate  in  the  event  of  the 
death  would  be  altered,  must  be  in  writing  as  affecting  the 
title  to  real  estate.  But  when  the  parties  are  really  partners, 
and  the  land  has  been  brought  into  and  actually  held  and 
used  by  the  partnership  for  partnership  purposes,  the  courts 
have  dealt  with  it  as  partnership  property,  although  the  own- 
ership has  not  been  apparently  in  all  the  members  of  the 
firm,  or,  if  in  all,  not  apparently  as  partners,  but  under  some 
other  title.  As  Lord  Chancellor  Loughborough  says  in 
Forster  v.  Hale,  a  very  valuable  case  on  this  point,  "  the  part- 
nership being  established  by  evidence,  upon  which  a  partner- 
ship may  be  found,  the  premises  necessary  for  the  purposes  of 
that  partnership  are  by  operation  of  law  held  for  the  purposes 
of  that  partnership."  1  For  it  seems  that  the  earlier  authori- 
ties to  the  effect  that  real  estate  used  for  partnership  pur- 
poses maintains  its  character  of  realty,  and  goes  to  the  heirs 

1  Forster  v.  Hale,  5  Ves.  309.  See  also  Jeffereys  v.  Small,  1  Vern. 
017;  Jackson  r.  Jackson,  5  Ves.  591;  Elliott  v.  Brown,  3  Swanst.  489, 
note ;  Fereday  v.  Wightwick,  1  Russ.  &  M.  45;  Essex  v.  Essex,  20  Beav. 
442;  Dyer  v.  Clark,  5  Met.  (Mass.)  562;  Burnside  v.  Merrick,  4  Met. 
(Mass.)  537 ;  Howard  v.  Priest,  5  Met.  (Mass.)  582;  Fall  River  Whaling 
Co.  v.  Borden,  10  Cush.  (Mass.)  458;  Henderson  v.  Hudson,  1  Munf. 
(Va.)  510;  Hanff  v.  Howard,  3  Jones  (N.  C.)  Eq.  44 ;  Fairchild  v.  Fair- 
child,  64  X.  Y.  471;  Boyers  r.  Elliott,  7  Humph.  (Tenn.)  204;  Wells  r. 
Stratton,  1  Tenn.  Ch.  328;  Jones  v.  McMichael,  12  Rich.  (S.  C.)  Law, 
176  ;  Allison  v.  Perry,  130  111.  9:  Personette  v.  Pryme,  34  N.  J.Eq.  26; 
Collins  v.  Decker,  70  Me.  23;  McKinnon  v.  McKinnon,  56  Fed.  Rep.  409. 
See  Allison  v.  Perry,  28  111.  App.  Ct.  396.  This  subject  is  discussed  in 
a  valuable  opinion  of  Lowell,  J. ,  In  re  Farmer.  Ex  parte  Griffin,  reported 
10  Chicago  Legal  Xews  395.  Cases  apparently  contra  are  Gray  v.  Palmer, 
9  Cal.  616;  Hale  v.  Henrie,2  Watts  (Penn.)  144. 


CH.   XII.]  CONTRACTS   FOR  LAND.  341 

of  the  partners  respectively,1  have  been  overruled,  and  that 
all  property,  whether  real  or  personal,  involved  in  a  partner- 
ship concern,  is  now,  upon  the  dissolution  of  the  partnership 
distributable  as  personalty,  and  generally  is  to  be,  for  ordi- 
nary purposes,  regarded  as  stock  in  trade.2 

§  260.  In  Dale  v.  Hamilton,  the  question  was  presented  in 
the  English  Chancery  in  a  somewhat  modified  form.  There 
the  plaintiff,  being  a  surveyor  and  land  agent,  alleged  that 
he  proposed  to  the  defendant's  testator  an  arrangement  for 
the  purpose  of  speculation,  by  which  he  and  a  third  party 
were  to  furnish  the  capital  for  buying  land,  the  plaintiff  to 
lay  out  the  lots  and  effect  the  sales,  and  each  of  the  parties 
to  be  interested  one-third  in  the  profits  and  losses.  It  was 
admitted  that  lands  were  acquired  under  some  such  general 
arrangement,  but  denied  that  the  plaintiff  was,  as  alleged,  a 
partner  therein ;  and  the  farther  question  was  made  whether, 
if  he  was  a  partner  in  fact,  verbal  proof  (or  written  proof 
imperfect  in  view  of  the  Statute  of  Frauds)  of  the  alleged 
partnership  was  sufficient  to  take  the  case  out  of  the  Statute 
of  Frauds,  in  a  case  where,  as  here,  the  entire  subject  of  the 
transaction  was  land,  and  the  partnership  grew  solely  out  of 
that  subject,  and  whether  the  cases  in  which  that  effect  had 
been  given  to  a  partnership  contract  were  not  cases  in  which 
the  dealing  in  land  was  only  an  incident  to  the  partnership 
business.  Vice-Chancellor  Sir  James  Wigram  delivered  a 
very  elaborate  and  careful  opinion,  in  which,  while  admitting 
the  general  principle  as  to  land  acquired  by  an  established 
partnership,  he  remarked  that  whether  a  simple  case  like  that 

1  Thornton  [Thompson]  v.  Dixon,  3  Bro.  C.  C.  199;  Bell  r.  Phyn,  7 
Ves.  453;  Balmain  v.  Shore,  9  Ves.  500.  But  see  Wilcox  t?.  Wilcox,  13 
Allen  (Mass.)  252 ;  Shearer  v.  Shearer,  98  Mass.  107. 

a  Per  Lord  Eldon,  in  Selkrig  v.  Pavies,  2  Dow  P.  C.  230;  Townsend 
v.  Devaynes,  cited  in  Montagu  on  Partnership,  Vol.  I.,  App.  97.  See 
also  Vol.  I.  p.  164  of  that  treatise,  and  Crawshay  v.  Manle.  1  Swanst.  495 ; 
also  3  Kent  Com.  §  37  ;  Clagett  v.  Kilbourne,  1  Black  (U.  S.)  348.  See 
abo  Marsh  v.  Davi?,  33  Kansas  326;  Richards  v.  Grinnell,  63  Iowa  44; 
Bates  ».  Babcock,  95  Cal.  479;  Speyer  v.  Desjardins,  144  111.  641. 


342  STATUTE    OF   FRAUDS.  [CH.   XII. 

before  him,  divested  of  everything  but  an  agreement  for  a 
partnership,  could  be  brought  within  the  scope  of  the  cases, 
was  a  question  of  no  inconsiderable  difficulty.  He  also  well 
stated  the  difficulty,  in  the  way  of  principle,  which  must 
present  itself  against  holding  such  an  agreement  efficacious 
to  affect  the  rights  of  the  parties  to  the  land ;  for,  says  he, 
"if  A.  alleges  that  B.  agreed  to  give  him  an  interest  in  land, 
the  statute  applies ;  but  if  he  adds  that  the  land  was  to  be 
improved  and  resold  at  their  joint  risk  for  profit  and  loss, 
then,  according  to  the  argument,  the  statute  does  not  apply." 
Nevertheless,  upon  a  nearer  view  of  the  cases,1  he  found  him- 
self unable  to  decide  that  the  plaintiff  was  barred  by  the 
statute  from  recovering,  if  the  agreement  alleged  was  really 
made,  and  that  fact  he  directed  to  be  tried  by  a  jury.2 

§  261.  This  doctrine  prevails,  however,  as  would  seem 
from  a  well-considered  case  decided  in  the  Supreme  Court  of 
Georgia,  only  as  between  the  partners,  or  between  them  and 
third  parties  dealing  with  them  in  regard  to  the  partnership 
land.  Where  a  bill  in  equity  alleged  that  of  three  persons 
who  had  formed  a  partnership  for  speculation  in  lands  by 
purchases  and  resales,  one  (the  defendant)  agreed  to  sell  to 
the  plaintiff  a  third  part  of  his  interest  in  the  lands  held 
by  the  partnership,  and  in  the  proceeds  from  the  sales,  and 
in  the  speculations  and  profits,  that  court  refused  to  decree  a 
specific  execution  of  the  agreement,  in  the  absence  of  a  suffi- 
cient memorandum  or  equitable  circumstances  avoiding  the 
effect  of  the  statute.  They  say :  "  It  is  true  that  in  a  court 

1  Jeffereys  v.  Small,  1  Vern.  217;  Jackson  r.  Jackson,  9  Ves.  Jr.  591  ; 
Lake  r.  Craddock,  3  P.  Wms.  158;  Elliott  v.  Brown,  3  Swanst.  489,  note 
(another  report  of  which  is  alluded  to  by  Lord  Eldon  in  Jackson  i\  Jack- 
son, supra)  ;  Forster  v.   Hale,  3   Ves.  696;  s.  c.  5  Ves.  309;  Fereday  v. 
Wightwick,  1  Rnss.  &  M.  45. 

2  Dale  v.  Hamilton,  5  Hare  369.     And  see  Smith  r.  Tarlton,  2  Barb. 
(N.  Y.)  Ch.  336;  Fall  River  Whaling  Co.  v.   Borden,  10  Cush.  (Mass.) 
458;  Traphagen  v.  Burt,  67  N.  Y.  30;  Slevin  v.  Wallace,  61  Hun  (X.  Y.) 
288;  contra.   Gray  v.  Palmer,  9  Cal.  616.     The   authority  of  Gray   v. 
Palmer,  9  Cal.  616,  has  been  denied  in  Coward  v.  Clanton,  79  Cal.  23. 
See  post,  §  262. 


CH.    XII.]  CONTKACTS  FOR  LAND.  343 

of  equity  real  estate  owned  by  a  partnership  may  be  treated 
as  a  part  of  the  partnership  funds,  and,  as  a  consequence,  as 
personal  estate.  But  this  rule  grows  out  of  the  peculiar  nature 
of  the  partnership  relation,  and  is  adopted  for  the  purpose  of 
doing  justice  between  partners,  or  between  them  and  others 
having  dealings  with  them,  and  for  the  purpose  of  properly 
adjusting  the  relations  between  them,  or  between  them  and 
others  having  dealings  with,  or  relations  to,  the  partnership. 
It  is  not  an  arbitrary  rule  by  which  a  court  of  equity  transmutes 
real  estate  into  personal  property  when  it  is  once  owned  and 
possessed  by  a  partnership,  and  causes  it  to  take  that  character 
outside  of  and  independent  of  the  exigencies  of  the  partner- 
ship, and  as  to  persons  having  no  relations  to  that  partner- 
ship. " 1  They  add,  that  here  the  purchase  was  "  of  an  interest 
in  the  profits  to  be  realized  by  the  defendant  from  the  sale  of 
these  lands  by  the  partnership,  and  that  he  was  not  and  could 
not  have  been  a  partner,  or  had  any  relation  to  the  partner- 
ship himself."  The  defendant  "  was  individually  responsible 
to  him,  and  not  as  one  of  the  partnership.  The  complainant 
then  was  a  stranger  to  this  firm,  and  as  to  him  these  lands 
were,  to  all  intents  and  purposes,  real  estate." 

§  261  a.  The  result  of  the  cases  we  have  been  considering 
upon  this  subject  of  the  effect  of  a  parol  partnership  upon  the 
title  to  lands  acquired  and  used  for  partnership  purposes  is, 
that,  the  fact  of  partnership  being  proved,  whether  by  articles 
or  by  parol,  real  estate  acquired  and  used  for  the  partnership 
purposes  becomes,  as  between  the  partners,  and  for  all  pur- 
poses of  adjustment  of  claims  against  the  firm  or  its  members, 
partnership  assets;  that  in  cases  where  the  title  to  the  land 
is  in  the  partners  as  joint  tenants  the  right  of  survivorship 
incident  to  that  tenancy  does  not  exist;  and  that  where  the 
title  is  in  one,  or  some  number  less  than  the  whole,  of  the 
partners,  it  is  for  the  purposes  above  named  devestcd,  and 
becomes  vested  in  all  the  partners  by  partnership  title ;  and 
this  whether  the  land  was  purchased  with  the  money  of  the 

i  Black  v.  Black,  15  Ga.  449. 


344  STATUTE   OF  FRAUDS.  [CH.   XII. 

firm  (creating  a  resulting  trust  to  the  firm)  or  with  the  money 
of  the  partner  taking  the  title ;  and  that  it  is  not  material 
whether  the  partnership  was  already  established  and  engaged 
in  its  business  when  the  land  was  acquired  and  brought  into 
the  stock,  or  whether  it  was  established  and  the  land  acquired 
and  put  in  contemporaneously,  or  whether  the  partnership 
was  established  for  the  purposes  of  some  other  trade  or  busi- 
ness,1 or  for  the  special  purpose  of  dealing  in  and  making 
profit  out  of  the  very  land  itself  which  is  in  question.  The 
whole  doctrine  (unless  it  can  stand  as  an  application  of  the 
law  of  implied  trusts  to  cases  of  land  purchased  and  held  by 
one  partner  in  derogation  of  his  fiduciary  obligation  to  the 
other)  must  be  regarded  as  a  bald  exception  to  the  rule  that 
no  oral  agreement  can  be  made  available  directly  or  indirectly 
to  effect  or  compel  the  transfer  of  any  interest  in  land.  It 
has  been  severely  criticised,  and  strenuous  efforts  have  been 
made  to  stop  it  half-way  by  limiting  it  to  cases  of  a  partner- 
ship already  formed  for  and  engaged  in  business,  as  distin- 
guished from  a  partnership  formed  and  the  land  acquired  in 
pursuance  of  one  and  the  same  verbal  agreement ;  or  to  cases 
of  a  partnership  for  general  purposes  to  which  the  holding 
and  use  of  the  land  was  incidental,  as  distinguished  from  a 
partnership  formed  for  the  special  purpose  of  dealing  in  the 
land.  On  principle,  the  doctrine  of  Forster  v.  Hale,  that,  on 
parol  proof  of  a  partnership  existing  and  doing  business, 
land  used  by  the  firm  for  the  purposes  of  that  business  is 
assets  of  the  firm,  however  the  paper  title  may  stand,  seems 
to  admit  of  no  such  limitations.  And  the  cases  which  assert 
them  do  not  deal  at  all,  or  do  not  appear  to  deal  satisfactorily, 
with  that  question. 

§  261  b.  In  Caddick  v.  Skidmore  (1857)  before  Lord  Chan- 
cellor Cranworth,  the  defendant  owned  a  colliery,  and  he 

1  In  Clarke  v.  McAuliffe,  81  Wise.  108,  it  was  held  that  a  parol  agree- 
ment by  a  firm  of  lawyers  to  buy  land  on  joint  account  with  partnership 
funds,  the  title  taken  by  one  to  be  for  the  benefit  of  both,  was  within 
the  Statute  of  Frauds,  the  land  transaction  being  foreign  to  the  partner- 
ship in  the  practice  of  law. 


CH.   XII.]  CONTRACTS   FOR  LAND.  345 

and  the  plaintiff  made  an  oral  agreement  to  become  partners 
in  the  colliery  for  the  purpose  of  demising  it  upon  royalties 
which  were  to  be  divided  between  them ;  it  was  demised  upon 
a  royalty  on  account  of  which  defendant  made  certain  pay- 
ments to  the  plaintiff,  and  afterwards  the  defendant  sold  the 
original  term ;  and  the  bill  prayed  for  an  account  and  for  pay- 
ment of  what  was  due  to  the  plaintiff,  apparently  both  back 
royalties  and  his  share  of  the  proceeds  of  sale.  Both  Forster 
v.  Hale  and  Dale  v.  Hamilton  were  cited  in  the  argument, 
but  neither  was  noticed  in  the  opinion  of  the  Lord  Chan- 
cellor. He  dismissed  the  bill  for  want  of  a  satisfactory 
memorandum  in  writing  of  the  agreement,  simply  saying 
that  "  an  agreement  to  the  effect  that  plaintiff  and  defendant 
were  to  become  partners  in  a  colliery  for  the  purpose  of  de- 
mising it  upon  royalties  which  were  to  be  divided  in  some 
proportion  between  them  "  was  in  his  opinion  "  an  agreement 
not  capable  of  being  enforced,  unless  proved  by  such  evidence 
as  is  required  by  the  Statute  of  Frauds. " 1  It  is  to  be  noticed 
that  here  the  lease,  which  was  the  interest  in  lands  in  ques- 
tion, had  been  sold,  and  no  relief  was  sought  except  a  division 
of  the  profits ;  in  this  respect  differing  from  Dale  v.  Hamilton, 
where  the  bill  prayed  for  a  sale  of  the  lands  on  joint  account 
and  a  distribution  of  the  proceeds  in  conformity  with  the 
agreement,  and  an  injunction  to  restrain  the  defendants  from 
otherwise  disposing  of  the  land ;  and  this  would  be  a  suffi- 
cient distinction,  at  least  in  this  country,  where  it  is  settled 
that,  a  contract  for  the  sale  of  lands  on  joint  account  having 
been  executed  as  to  the  sale  of  the  land,  an  action  lies  for 
distribution  of  the  profits.2 

§  261  c.  On  the  other  hand,  the  more  recent  case  of  Essex 

1  Caddick  r.  Skidmore.  2  De  Gex  &  J.  51. 

8  Trowbridge  v.  Wetherbee,  11  Allen  (Mass.)  361;  Morrill  v.  Colehour, 
82  111.  618  ;  Coleman  v.  Eyre,  45  N.  Y.  38;  Newell  v.  Cochran,  41  Minn. 
374  ;  Everhart's  Appeal,  106  Pa.  St.  349;  Coward  ».  Clanton,  79  Cal.  23. 
In  a  recent  case  in  New  York,  however,  a'  distinction  has  been  taken 
between  land  bought  for  speculation  or  trading  and  for  investment. 
Slevin  v.  Wallace,  64  Hun  (N.  Y.)  288. 


346  STATUTE  OF  FRAUDS.  [CH.  X3L 

v.  Essex,  before  Lord  Chancellor  Cranworth,  where  a  parol 
agreement  was  held  competent  to  extend  the  term  of  a  writ- 
ten contract  of  partnership  for  dealing  in  land,  and  the  rule 
of  partnership  distribution  applied  accordingly,  may  be  con- 
sidered as  reaffirming  the  doctrine  of  Dale  v.  Hamilton, 
although  that  case  was  not  referred  to  in  the  opinion.1  In 
England,  therefore,  that  doctrine  can  hardly  be  regarded  as 
overthrown.2 

§  261  d.  In  this  country  the  decisions  are  conflicting. 
The  Supreme  Court  of  Indiana  3  has  directly  followed  Dale 
v.  Hamilton,  adopting  in  terms  the  opinion  of  the  Court  of 
Appeals  of  New  York4  to  the  same  effect;  that  opinion, 
however,  being  unnecessary  to  the  decision  in  the  Court  of 
Appeals,  where  the  question  was  of  the  competency  of  parol 
evidence  to  prove  the  existence  of  the  partnership  relation 
between  the  several  defendants  for  the  purpose  of  charging 
all  for  the  torts  of  some ;  the  partnership  being  in  fact  for 
dealing  in  land,  but  no  remedy  being  sought  against  the 
land  or  its  proceeds.  In  Henderson  v.  Hudson  in  the  Court 
of  Appeals  of  Virginia,5  sometimes  referred  to  as  opposed 
to  the  doctrine  of  Dale  v.  Hamilton,  the  agreement  was  that 
the  plaintiff  and  defendant  should  join  in  the  purchase  of 
lands,  and  also  that  the  defendant  should  after  a  certain  time 
let  the  plaintiff  have  his  share  at  a  certain  price ;  and  it  was 
held  that  the  two  stipulations  were  inseparable,6  and  that,  in- 
asmuch as  the  latter  was  clearly  within  the  statute,  no  recov- 

1  Essex  v.  Essex,  20  Beav.  442. 

2  Tt  is  proper  to  add  that  the  affirmance  of  Dale  v.  Hamilton  by  the 
Lord  Chancellor  on  appeal  (see  2  Phillips  266)  was  put  upon  a  different 
ground  from  the  rule  to  which  it  is  cited  in  the  text. 

8  Holmes  v.  McCray,  51  Ind.  358.  See  also  Knott  v.  Knott,  6  Oregon 
142;  Bates  v.  Babcock.  95  Cal.  479.  Tn  Illinois  the  doctrine  of  Dale  v. 
Hamilton  seems  to  be  questioned.  Home  v.  Ingraham,  125  111.  198. 

4  Chester  ».  Dickerson,  54  N.  Y.  1.  See  also  Gibbons  v.  Bell,  45  Tex. 
417;  King  v.  Barnes,  109  N.  Y.  267;  Kilbourn  ».  Olmstead,  5  Mackey 
(D.  of  C.)  304. 

6  Henderson  v.  Hudson,  1  Munf.  510. 

6  See  Chap.  IX.,  ante.     Also  Raub  v.  Smith,  61  Mich.  543. 


CH.   XII.]  CONTRACTS  FOR   LAND.  347 

ery  could  be  had  on  the  former.  So  far,  therefore,  as  the 
case  bears  at  all  upon  the  question  we  are  considering,  it 
recognizes  an  agreement  to  buy  lands  on  joint  account  as 
good  by  parol.  The  case  of  Walker  v.  Herring,1  in  the 
same  State,  does  decide  that  a  parol  agreement  to  be  jointly 
interested  in  a  purchase  of  land  is  within  the  statute ;  the 
decision,  however,  being  put  expressly  on  the  authority  of 
Henderson  v.  Hudson,  which  is  not  an  authority  to  that 
point.2 

§  261  e.  The  most  prominent  American  case  involving  the 
question  of  a  parol  partnership  for  dealing  in  lands,  as  affect- 
ing the  title  to  the  land  bought  by  one  partner  in  pursuance 
of  it,  is  Smith  v.  Burnham,  decided  by  Mr.  Justice  Story 
several  years  before  Dale  v.  Hamilton.3  The  plaintiff  and 
defendant  made  an  oral  agreement  to  become  copartners  in 
the  business  of  buying  and  selling  land  and  lumber,  upon  a 
joint  capital  to  be  furnished  by  both,  and  the  profits  and 
losses  to  be  equally  shared  between  them.  The  bill  alleged 
that  land  and  lumber  had  been  bought  and  held  accordingly, 
the  plaintiff  advancing  capital  for  the  purpose,  and  called  for 
an  account  and  a  decree  of  dissolution,  and  a  conveyance  to 
the  plaintiff  of  his  share  of  the  land  remaining  unsold. 
Judge  Story  held  that,  inasmuch  as  the  suit  was  for  recogni- 
tion and  enforcement  of  a  trust  in  land,  arising  upon  the 
breach  of  the  oral  partnership  agreement,  it  could  not  be 
maintained,  and  dismissed  the  bill.4  This  decision  is  mani- 
festly opposed  to  Dale  v.  Hamilton  and  the  cases  which  it 
represents.  It  should  be  noticed  that  in  the  copious  citation 
of  cases  in  the  opinion,  there  is  no  reference  to  the  case  of 

1  Walker  v.  Herring,  21  Grat.  678. 

3  The  subject  of  agreements  to  join  in  purchases  of  land  is  resumed, 
post,  §  261  g.     See  also  Raub  v.  Smith,  61  Mich.  543. 

•  Smith  n.  Burnham,  3  Sumn.  437. 

4  In   Dale  i>.  Hamilton  the  Vice-Chancellor  was  of  opinion  that  the 
trust  arising  upon  the  refusal  to  perform  the  parol  partnership  agreement 
was  a  trust  implied  from  the  relation  of  copartnership,  and  hence  exempt 
from  the  statute. 


348  STATUTE   OF  FRAUDS.  [CH.   XIL 

Lake  v.  Craddock,1  which  Sir  Lancelot  Shad  well  cited  in 
Dale  v.  Hamilton,  and  which  fully  supported  his  judgment. 

§  261 /.  In  conclusion  of  the  review  of  the  American 
cases,  reference  should  be  made  to  an  able  judgment  of  the 
Supreme  Court  of  Wisconsin,2  where  the  whole  subject  of  the 
operation  of  a  parol  partnership  relation  upon  the  title  to 
land  bought  in  pursuance  of  it  is  fully  discussed,  and  Smith 
v.  Burnham  followed,  and  a  vigorous  protest  made  against 
the  doctrine  of  Forster  v.  Hale  and  the  cases  which  it  repre- 
sents, the  court  evidently  appreciating  the  difficulty  of  distin- 
guishing the  general  rule  of  those  cases  from  its  particular 
application  in  Dale  v.  Hamilton.8 

§  261  g.  There  are  frequent  cases  of  parol  agreements  to 
join  in  the  purchase  of  land,  where  the  party  excluded  from 
the  purchase  seeks  to  enforce  his  right  to  a  joint  interest  in 
it,  or  the  party  who  has  made  the  purchase  alone  seeks  to 
compel  the  other  to  contribute  to  the  payment  of  the  price ; 
and  these  cases,  in  this  country,  are  held  to  be  within  the 
Statute  of  Frauds.  It  seems  that  such  agreements  must  be 
regarded  as  pro  hac  vice  agreements  of  copartnership  in  land ; 
and  the  decisions  in  question  must  therefore  be  taken  into 
consideration  in  ascertaining  the  preponderance  of  authority 
in  this  country  on  the  question  we  have  had  under  discus- 
sion.4 Where  the  action  is  only  for  the  agreed  share  of  the 

1  Lake  v.  Craddock,  3  P.  Wms.  158. 

2  Bird  v.  Morrison,  12  Wise.  138.     See  also  Clarke  v.  McAuliffe,  81 
Wise.  108. 

8  See  opinion  of  Lowell,  J.,  reported  in  10  Chicago  Legal  News,  395, 
in .  re  Farmer,  ex  parte  Griffin,  cited  §  259,  supra.  And  see  Rowland  v. 
Boozer,  10  Ala.  694;  Case  v.  Seger,  4  Wash.  492. 

4  Linscott  v.  Mclntire,  15  Me.  201;  Hess  v.  Fox,  10  Wend.  ("N".  Y.) 
436;  Gwaltney  v.  Wheeler,  26  Tnd.  415;  Bruce  v.  Hastings,  41  Vt.  380; 
Trowbridge  v.  Wetherbee,  11  Allen  (Mass.)  361;  Wetherbee  v.  Potter,  99 
Mass.  354;  Henderson  v,  Hudson,  1  Munf.  (Va.)  510;  Walker  v.  Her- 
ring, 21  Gratt.  (Va.)  678 ;  McCormick's  Appeal,  57  Pa.  St.  54 ;  Dunphy 
r.  Ryan,  116  TJ.  S.  491 ;  Young  v.  Wheeler,  34  Fed.  Rep.  98;  Slevin  ». 
Wallace,  64  Hun  (N.  Y.)  288.  And  see  Hirbour  ».  Reeding,  3  Montana 
15. 


CH.   XII.]  CONTRACTS   FOR   LAND.  349 

profits  of  the  sale  of  land,  no  agreement  affecting  the  title 
to  the  land  itself  remaining  executory,  the  statute  (at  least 
in  this  country)  does  not  apply.  'l 

§  262.  The  mere  parol  agreement  to  form  a  partnership  in 
land,  apart  from  all  question  of  asserting  an  interest  in 
land,  appears  by  the  weight  of  authority  to  be  valid  and 
actionable.2 

§  263.  Coming  now  to  the  second  division  of  this  general 
subject  of  contracts  for  interests  in  land  (which  has  been 
already  nearly  anticipated),  we 'are  to  inquire  what  is  the 
nature  of  the  transaction  which  the  statute  requires  to  be  in 
writing.  Contract  or  sale,  the  expression  used  in  the  clause 
under  consideration,  clearly  means  contracts  for  sale.3  But 
it  is  not  only  contracts  for  the  sale  of  land  which  are  intended 
to  be  embraced ;  for  all  the  cases  show  that  &  purchase  of  land 
is  as  much  within  the  statute  as  a  sale  of  it,  the  policy  of 
the  law  being  not  only  to  protect  owners  of  land  from  being 
deprived  of  it  without  written  evidence,  but  also  to  prevent 
a  purchase  of  land  from  being  forced  by  perjury  and  fraud 
upon  one  who  never  contracted  for  it.  An  agreement  to 


1  See  the  cases  last  cited,  and  ante,  §  261  6;  Howell  v.  Kelly,  149  Pa. 
St.  473.  But  see  Raub  v.  Smith,  61  Mich.  543;  Brosnan  r.  McKee,  63 
Mich.  454. 

*  Chester  v.  Dickerson,  54  N.  Y.  1 ;  Traphagen  t'.  Burt,  67  N.  Y.  30 ; 
Gibbons  v.  Bell,  45  Tex.  417 ;  Holmes  v.  McCray,  51  Ind.  358.  See 
Bunnell  v.  Taintor,  4  Conn.  568;  Murley  v.  Ennis,  2  Col.  300 ;  Coffin  v. 
McTntosh,  9  Utah  315;  Fountain  v.  Menard,  53  Minn.  443;  Speyer  v. 
Desjardins,  144  HI.  641;  Richards  v.  Grinnell,  63  Iowa  44;  Pennybacker 
v.  Leary,  65  Iowa,  220;  Newell  ».  Cochran,  41  Minn.  374;  McElroy  v. 
Swope,  47  Fed.  Rep.  380;  Flower  v.  Barnekoff,  20  Oregon  132;  Bates  ». 
Babcock,  95  Cal.  479.  See  Gorham  v.  Heiman,  90  Cal.  346.  But  where 
the  partnership  exists,  and  holds  land,  an  agreement  by  one  of  the  part- 
ners to  retire  and  assign  his  share  in  the  assets  is  within  the  statute. 
Gray  v.  Smith,  L.  R.  43  Ch.  D.  208. 

8  In  Boyd  v.  Stone,  11  Mass.  346,  Parker,  C.  J.,  remarked  upon  the 
singular  circumstance  that  this  error  of  phraseology  was  adopted  both  in 
the  Provincial  Act  of  1692,  and  the  Statute  of  the  Commonwealth,  1783. 
It  is  corrected  in  the  Revised  Statutes.  But  the  same  thing  occurs  in 
many  of  the  American  Statutes  of  Frauds. 


350  STATUTE   OF  FRAUDS.  [CH.    XII. 

devise  an  interest  in  land,  though  founded  on  a  precedent 
valuable  consideration,  is  also  within  this  section  of  the 
statute ; *  and,  as  we  shall  see  in  the  course  of  this  chapter, 
the  effect  of  the  provision,  as  expounded  and  applied  by  the 
courts,  is  to  render  unavailing  to  the  parties,  as  the  ground 
of  a  claim,  any  contract,  in  whatever  shape  it  may  be  put,  by 
which  either  of  them  is  to  part  with  any  interest  in  real 
estate. 

§  263  a.  It  would  seem  to  be  the  more  reasonable  construc- 
tion of  the  statute,  as  it  regards  contracts  for  land,  that  it 
embraces  only  contracts  by  which  one  of  .the  parties  parts 
with  land  to  the  other.2  When,  for  instance,  the  defendant 
promises  the  plaintiff  to  buy  land  for  himself,  —  the  plaintiff, 
whatever  his  advantage  from  having  the  defendant  make  the 
purchase,  acquiring  no  interest  in  land,  —  the  contract  does 
not  appear  to  be  within  the  policy  of  the  statute.3  But  it  has 
been  held  in  the  Common  Pleas  (Keating,  J.,  doubting)  that 
an  agreement  by  the  defendant  to  procure  a  third  party  to 
make  a  lease  of  real  estate  to  the  plaintiff  was  within  the 
statute.4  It  is  not  clear  from  the  report  whether  or  not  the 
purchase-money  was  to  be  advanced  by  the  defendant.  This 
may  make  a  difference ;  for  if  it  was,  the  defendant  may  be 
regarded  as  buying  the  lease  himself,  the  deed  to  be  made  to 
his  nominee,  the  plaintiff.5  In  cases  of  a  promise  to  the 

1  Harder  ».  Harder,  2  Sandf.  (N.  Y.)  Ch.  17;  Mundorff  v.  Kilbourn, 
4  Md.   459;  Campbell  v.  Taul,  3  Yerg.    (Tenn.)  548;    Qnackenbush  v. 
Ehle,  5  Barb.  (N.  Y.)  469;  Johnson  v.  Hubbell,  2  Stock.  (1ST.  J.)  Ch.  322 ; 
Gould  v.   Mansfield,  103  Mass.  408;  In  re  Kessler's  Estate,  59  N.  W. 
Rep.  (Wise.)   129;    Manning   v.   Pippen,  86   Ala.   357;    Wellington   v. 
Apthorp,  145  Mass.  69;  Manning  v.  Pippen,  95  Ala.  537;  Hale  v.  Hale, 
19  S.  E.  Rep.  (Va.)  739.     See  Crutcher  v.  Muir,  90  Ky.  142. 

2  Murley  v.  Ennis,  2  Col.  300. 

«  Little  v.  McCarter,  89  N".  C.  233. 

4  Horsey  v.  Graham,  L.  R.  5  C.  P.  9;  Bannon  v.  Bean,  9  Iowa,  395. 

6  In  Mather  w.  Scoles,  35  Ind.  2,  the  defendant's  promise  was  to  pro- 
cure ''  at  his  own  cost "  the  conveyance  from  the  third  party  to  the  plain- 
tiff of  land  worth  a  certain  amount,  or  to  pay  the  plaintiff  enough  to 
enable  him  to  procure  the  conveyance  directly  to  himself;  he  did  neither, 
and  the  plaintiff  sued  for  breach  of  the  agreement ;  and  it  was  held  that 
the  statute  applied. 


CH.   XII.]  CONTRACTS   FOR   LAND.  351 

plaintiff  by  the  defendant  to  buy  land  for  himself  from  a  third 
party,  if  the  third  party  be  the  nominee  of  the  plaintiff,1  or 
a  relative  for  whom  he  wishes  to  provide,2  the  indirect  in- 
terest of  the  plaintiff  in  the  purchase  itself  may  draw  the 
contract  under  the  operation  of  the  statute. 

§  264.  It  was  formerly  supposed  that  auction  sales  of  land 
were  not  embraced  by  the  statute,  but  it  is  now  clearly  set- 
tled otherwise.  Sir  William  Grant  says :  "  From  the  public 
nature  of  a  sale  by  auction,  it  does  not  follow  that  what 
passes  there  must  be  matter  of  certainty;  so  far  from  it 
that  I  never  saw  more  contradictory  swearing  than  in  those 
cases  where  attempts  were  made  to  introduce  evidence  of 
what  was  said  or  done  during  the  course  of  the  sale."3  As 
to  sheriff's  sales  on  execution,  and  sales  by  town  officers,  or 
trustees  or  administrators,  there  are  differences  of  opinion 
and  decision,  turning  upon  the  fact  of  their  being  regarded, 
or  not,  as  quasi  judicial  sales.  When  so  regarded,  they  are 
held  not  to  be  affected  by  the  statute,  but  if  otherwise,  no 
exception  is  made  in  their  favor.4 

§  265.  The  distinction  in  favor  of  what  are  called  judicial 
sales  appears  to  have  been  first  made  by  Lord  Hardwicke  in 
the  case  of  the  Attorney-General  v.  Day.  There,  the  Master 
in  Chancery  having  reported  a  scheme  for  carrying  out  a 
verbal  contract  of  which  specific  execution  had  been  ordered, 

1  Chiles  P.  Woodson,  2  Bibb  (Ky.)  72.     And  see  Allen  v.  Richard,  83 
Mo.  55. 

2  Campbell  v.  Taul,  3  Yerg.  (Tenn.)  548  ;  Lamar  r.  Wright,  31  S.  C. 
60. 

8  Blacrden  t».  Bradbear,  12  Ves.  466.  The  rule  is  too  familiar  to  re- 
quire the  citation  of  authorities.  They  will  be  found  collected  in  Chitty 
on  Contracts,  271. 

4  See  Tate  v.  Greenlee,  4  Dev.  (N.  C.)  149;  Ingram  v.  Dowdle,  8  Ired. 
(N.  C.)  455;  Emley  v.  Drumm,  36  Pa.  St.  123;  Ruckle  ».  Barbour,  48 
Ind.  274;  Warfield  o.  Dorsey,  39  Md.  299;  Brent  v  Green,  6  Leigh  (Va.) 
16;  Wolfe  v.  Sharp,  10  Rich.  (S.  C.)  Law,  60;  King  i>.  Gunnison,  4  Pa. 
St.  171;  Carroll  P.  Powell,  48  Ala  298;  Jones  v  Kokomo  Association,  77 
Ind.  340;  Joslin  v.  Ervien,  50  N.  J.  Law  39;  White  u.  Farley,  81  Ala. 
563. 


352  STATUTE    OF   FKAUDS.  [CH.    XII. 

and  his  report  having  been  allowed,  his  Lordship  said  he  did 
not  doubt  the  propriety  of  carrying  into  execution  against 
the  representative  a  purchase  by  a  bidder  before  the  Master, 
though  the  purchaser  had  subscribed  no  agreement ;  that  it 
was  a  judicial  sale  of  the  estate,  which  took  it  entirely  out 
of  the  statute. 1  This  remark  has  been  strongly  criticised 
by  Judge  Kent,  but  apparently  without  necessity.  He  had 
occasion  in  the  case  before  him  only  to  hold  that  a  sale  by  a 
sheriff  required  to  be  consummated  by  deed,  and  that  his 
seizure  of  land  under  a  fi.  fa.  and  return  on  the  execution 
did  not  suffice  to  devest  the  debtor's  estate  in  it.2  This  is 
true  also  of  a  judicial  sale,  which  should  be  followed  up  by 
a  deed  from  the  Master,  or  other  officer  of  the  court.  The 
decision  of  Lord  Hardwicke  was  simply  that,  after  confirma- 
tion of  the  report,  the  parties  were  bound  to  carry  out  the 
sale,  notwithstanding  no  memorandum  of  it  had  previously 
been  made  in  writing.  The  grounds  of  this  rule  are  well 
stated  by  Story,  J.,  in  the  case  of  Smith  v.  Arnold.  "In 
sales  directed  by  the  Court  of  Chancery,  the  whole  business 
is  transacted  by  a  public  officer  under  the  guidance  and  super- 
intendence of  the  court  itself.  Even  after  the  sale  is  made, 
it  is  not  final  until  a  report  is  made  to  the  court  and  it  is 
approved  and  confirmed.  Either  party  may  object  to  the 
report,  and  the  purchaser  himself,  who  becomes  a  party  to 
the  sale,  may  appear  before  the  court,  and,  if  any  mistake  has 
occurred,  may  have  it  corrected.  He,  therefore,  becomes  a 
party  in  interest;  and  may  represent  and  defend  his  own 
interests;  and  if  he  acquiesces  in  the  report,  he  is  deemed 
to  adopt  it,  and  is  bound  by  a  decree  of  the  court  confirming 
the  sale.  He  may  be  compelled  by  process  of  the  court  to 
comply  with  the  terms  of  the  contract.  So  that  the  whole 

1  Attorney-General  v.   Day,   1  Ves.   Sen.   218.     See  also  Blagden  v. 
Bradbear,  12  Ves.  466;  Smith  v.  Arnold,  5  Mas.  (C.  C.)  474;  Boykin  v. 
Smith,  3  Munf.  (Va.)  102;  Trice  v.  Pratt,  1  Dev.  &  B.  (N.  C.)  Eq.  626; 
Jenkins  v.  Hogg,  2  Treadw.  (S.  C.)  821 ;    Hudson  v.   Coble,  P7  N.  C. 
260. 

2  Simonds  v.  Catlin,  2  Caines  (N.  Y.)  61.     Ante,  §  28. 


CH.    XII.]  CONTRACTS   FOR  LAND.  353 

proceedings  from  the  beginning  to  the  end  are  under  the 
guidance  and  direction  of  the  court ;  and  the  case  does  not  fall 
within  the  mischiefs  supposed  by  the  Statute  of  Frauds."1 
Sales  by  sheriffs  on  execution  are  not,  as  we  have  seen,  to 
be  regarded  as  judicial  sales,2  nor  sales  by  town  officers,  nor 
by  trustees,  nor  by  administrators.  The  remarks  of  Judge 
Story  in  the  case  from  which  we  have  just  quoted,  and  where 
the  point  decided  was  that  an  administrator's  sale  of  land 
was  not  saved  from  the  statute  as  a  judicial  sale,  are  entirely 
applicable  to  all  these  varieties.  "In  the  case  of  an  admin- 
istrator, the  authority  to  sell  is  indeed  granted  by  a  court  of 
law.  But  the  court,  when  it  has  once  authorized  the  admin- 
istrator to  sell,  isfunctus  officio.  The  proceedings  of  the  ad- 
ministrator never  come  before  the  court  for  examination  or 
confirmation.  They  are  mere  matters  in  pais,  over  which  the 
court  has  no  control.  The  administrator  is  merely  account- 
able to  the  Court  of  Probate  for  the  proceeds  acquired  by  the 
sale,  in  the  same  manner  as  for  any  other  assets.  But  whether 
he  has  acted  regularly  or  irregularly  in  the  sale  is  not  matter 
into  which  there  is  any  inquiry  by  the  court  granting  the 
license,  or  by  the  Court  of  Probate  having  jurisdiction  over 
the  administration  of  the  estate.  So  that  the  present  case  is 
not  a  judicial  sale  in  any  just  sense,  but  it  is  the  execution 
of  a  ministerial  authority.  The  sale  is  not  the  act  of  the 
couct  but  of  the  administrator."  3 

§  266.  An  agreement  by  which  a  party  shall  ultimately  be 
bound  to  sell  or  purchase  land  is,  of  course,  as  much  within 
the  statute  as  if  he  bound  himself  immediately  to  do  so.4  A 
verbal  engagement,  therefore,  to  execute  a  written  agreement 

1  Smith  v.  Arnold,  5  Mas.  (C.  C.)  420.  See  also  Hutton  r.  Williams, 
35  Ala.  503 ;  Fulton  v.  Moore,  25  Pa.  St.  468;  Halleck  p.  Guy,  9  Cal.  181 ; 
Armstrong  v.  Vroman,  11  Minn.  220;  Watson  v.  Violett,  2  Duvall  (Ky.) 
332;  Andrews  ».  O'Mahoney,  112  N.  Y.  567. 

a  Ante,  §  264.     Also  see  Brent  v.  Green,  6  Leigh  (Va.)  16. 

«  Smith  v.  Arnold,  5  Mas.  (C.  C.) ;  Wolfe  v.  Sharp,  10  Rich.  (S.  C.) 
Law,  60;  King  r.  Gunnison,  4  Pa.  St.  171. 

4  Rucker  v.  Steelman,  73  Ind.  396. 

23 


354  STATUTE   OF  FRAUDS.  [CH.   XII. 

to  convey  land  is  invalid,1  or  to  make  a  will  of  lands.2  And 
so  where  it  was  attempted  to  prove  that  a  deceased  owner  of 
land  had  said,  during  his  lifetime,  that  he  had  sold  it  to  the 
plaintiff  and  that  the  proceeds  belonged  to  him,  the  evidence 
was  rejected,  because  it  worked  the  same  result  as  oral  proof 
of  an  executory  contract  to  sell  the  land.3 

§  267.  The  statute  extends  to  any  agreement  by  which 
rights  already  acquired  in  real  estate  under  a  deed  or  other 
sufficient  writing  are  enlarged  or  qualified.4  Not  only  is  an 
agreement  to  execute  a  mortgage  invalid  without  writing,5 
but  also  an  agreement  to  make  a  defeasance  to  an  absolute 
conveyance,6  or  to  convert  a  written  mortgage  into  a  condi- 
tional sale,7  or  to  foreclose  a  mortgage,  even  when  the  agree- 
ment is  made  by  solicitors  in  anticipation  of  a  decree  of 
court  to  the  same  effect.8  It  would  seem  to  be  very  clear 
that  a  defunct  mortgage  cannot  be  .revived  by  a  parol  agree- 
ment;9 and  it  has  been  decided  that  a  defunct  written 
agreement  for  the  sale  of  land  could  not. 10  Nor  can  a  written 
executory  contract  for  the  sale  of  land  be  rescinded  by  parol.11 

1  Ledford  v.  Ferrell,  12  Ired.  (N.  C.)  285;  Trammel!  v.  Trammell,  11 
Rich.  (S.  C.)  Law,  471;  Yates  v.  Martin,  1  Chand.  (Wise.)  118;  Law- 
rence v.  Chase,  54  Me.  196;  Sands  v.  Thompson,  43  Ind.  18.  So  with  the 
sale  of  a  bond  entitling  the  holder  to  the  benefit  of  a  mortgage  of  land. 
Toppin  w.  Lomas,  16  C.  B.  145 ;  Curtis  v.  Abbe,  39  Mich.  441  ;  Brackett 
».  Brewer,  71  Me.  478. 

a  Gould  r.  Mansfield,  103  Mass.  408;  Roehl  v.  Haumesser,  11 4*  Ind. 
311;  Chase  v.  Fitz,  132  Mass.  359;  Wellington  v.  Apthorp,  145  Mass. 
73. 

«  White  r.  Coombs,  27  Md.  489. 

4  Irwin  v.  Hubbard,  49  Ind.  350;  and  see  McEwan  v.  Ortman,  34 
Mich.  325.  And  see  Sullivan  v.  Dunham,  42  Mich.  518. 

6  Clabaugh  r.  Byerly,  7  Gill  (Md.)  354.  And  see  Stringfellow  u.  Ivie, 
73  Ala.  215  ;  Patton  ».  Beecher,  62  Ala.  579. 

6  Boyd  v.  Stone,  11  Mass.  342. 

»  Woods  v.  Wallace,  22  Pa.  St.  171. 

8  Cox  v.  Peele,  2  Bro.  C.  C.  334. 

'  A  different  doctrine,  however,  might  be  inferred  from  the  New  Tork 
cases  of  Truscott  v.  King,  6  N.  Y.  147,  and  Mead  ».  York,  6  N.  Y.  449. 

10  Davis  v.  Parish,  Litt.  (Ky.)  Sel.  Cas.  153. 

11  Catlett  ».  Dougherty,  21  111.  App.  116. 


CH.   XII.]  CONTRACTS   FOR   LAND.  355 

An  arrangement  to  extend  the  effect  of  a  mortgage  so  as  to 
cover  other  and  farther  liabilities  is  not  good  without  writ- 
ing.1 But  a  verbal  extension  of  the  time  for  redeeming 
mortgaged  land  is,  it  seems,  to  be  regarded  as  conferring 
no  interest  in  the  land.2  Whether  a  mortgage  can  be  ver- 
bally released  or  discharged,  seems  to  depend  upon  the  ques- 
tion (on  which,  as  we  have  seen,  there  is  great  contrariety  of 
opinion  in  the  courts  of  different  States)  whether  it  is  to  be 
regarded  strictly  as  a  conveyance  of  the  land  or  as  a  mere 
incident  to  the  debt.3 

§  268.  An  agreement  to  establish  the  title  to  land  in  any 
party  is,  of  course,  equivalent  to  an  agreement  to  sell  him 
the  land ;  and  it  has  accordingly  been  held  that  an  engage- 
ment to  break  down  a  certain  alleged  title  under  which  a 
third  party  claimed  adversely,  or  in  any  way  to  perfect  the 
title  in  the  promisee,  is  within  the  statute.4  Also,  as  appears 
to  have  been  the  opinion  of  the  Supreme  Court  of  Massachu- 
setts, a  verbal  agreement  to  release  a  covenant  of  warranty 
would  be  invalid.6  On  the  other  hand,  a  mere  verbal  guar- 

1  Williams  r.  Hill,  19  How.  (U.  S.)  246;  Stoddard  v.  Hart,  23  N.  Y. 
556  ;  Curie  ».  Eddy,  24  Mo.  117.     Nor  is  an  agreement  to  substitute  cer- 
tain other  land  for  that  which  is  described  in  a  mortgage.    Castro  v.  lilies, 
13  Tex.  229. 

2  Hamilton  v.  Terry,  11  C.  B  954 ;  Griffin  ».  Coffey,  9  B.  Mon.  (Ky.) 
452;  Butt  v.  Butt,  91  Ind.  305;  Scheffermeyer  v.  Schaper,  97  Ind.  70; 
McMakin  w.    Schenck,  98  Ind.  264;  Vliet  v.  Young,  34  N.  J.  Eq.  15; 
Hicks  v.    Aylsworth,   13  R.  I.  562.     See  Martin  v.  Martin,  16  B.  Mon. 
(Ky.)   8;  Moorman  v.   Wood,  117  Ind.  144;  McNeil  v.  Gates,  41  Ark. 
264;  Worden  v.  Crist,  106  111.  326.     In  Littell  v.  Jones,  56  Ark.  139,  it 
was  held  that  where  the  time  to  redeem  had  expired  an  oral  contract  by 
the  purchaser  at  the  execution  sale  to  relinquish  his  claim  to  the  land  is 
•within  the  statute. 

8  Hunt  v.  Maynard,  6  Pick.  (Mass.)  489;  Parker  v.  Barker.  2  Met. 
(Mass.)  423  ;  Malins  v.  Brown,  4  N.  Y.  403  ;  Phillips  v.  Leavitt,  51  Me. 
405;  Leavitt  v.  Pratt,  53  Me.  147;  ante,  §  65.  As  to  a  parol  waiver  of  a 
devise  of  land,  see  Doe  r.  Smyth,  6  Barn.  &  C.  112.  As  to  a  parol  dis- 
charge of  a  contract  for  land,  see  post,  §§  429  et  seq. 

4  Duvall  v.  Peach,  1  Gill  (Md.)  172 ;  Bryan  v.  Jamison,  7  Mo.  106. 
See  Bishop  r.  Little,  n  Greenl  (Me.)  362. 

6  Bliss  v.  Thompson,  4  Mass.  488.     And  it  seems  to  have  been  consid- 


356  STATUTE   OF  FRAUDS.  [CH.   XIL 

anty  of  title,  or  quantity,  of  course,  gives  merely  a  remedy  in 
damages,  and  does  not  go  to  pass  any  interest  in  the  land 
between  the  parties,  nor  does  the  statute  affect  an  agreement 
to  pay  the  expense  of  investigating  the  title  to  land  in  case 
it  prove  unsatisfactory.1  It  is  obvious  that  these  are  rather 
contracts  concerning,  than  contracts  for  the  sale  of  an  inter- 
est concerning,  land.2  Still  less  can  the  statute  be  con- 
sidered applicable  to  mere  agreements  to  pay  or  account  for 
the  proceeds  of  sales  of  land,  or  to  pay  an  agent's  commis- 
sion for  services  in  buying  or  selling  land.3 

§  269.  It  is  undoubtedly  the  meaning  of  this  branch  of  the 
statute  that  only  those  agreements  which  bind  the  parties  to 
a  change  in  some  respect  in  the  title  to  the  land  are  required 
to  be  in  writing.  Thus,  as  we  had  occasion  to  see  in  a 
former  part  of  this  book  under  the  head  of  conveyances,  a 
verbal  agreement  for  the  settlement  of  an  uncertain  boundary 

ered  by  the  Supreme  Court  of  New  York  doubtful  whether  an  agreement 
to  pay  off  incumbrances  was  not  also  within  the  statute.  Duncan  v.  Blair, 
5  Denio,  196. 

1  Jeakes  v.  White,  6  Exch.  873;  Huntington  v.  Wellington,  12  Mich. 
10;  Lamm  v.  Port  Deposit  Association,  49  Md.  233.    So  a  parol  guaranty 
by  a  seller  that  the  tract  sold  contained  a  certain  number  of  acres  is  not 
within  the  statute.     Schriver  v.   Eckemode,   94   Pa.    St.   456.     A   parol 
stipulation  by  a  building  contractor  that  no  material  men's  liens  should 
be  filed  held  good  in  McElroy  v.  Bradden,  152  Pa.  St.  81. 

2  See  also  Doggatt  v.  Patterson,  18  Texas  158;  Evans  v.  Hardeman, 
15  Texas  480;  Natchez  v.  Vandervelde,  31  Miss.  706;  Miller  r.  Roberts, 
18  Texas  16. 

8  Graves  v.  Graves,  45  N.  H.  323;  Ford  v.  Finney,  35  Ga.  258;  Gwalt- 
ney  v.  Wheeler,  26  Ind.  415;  Jones  National  Bank  v.  Price,  37  Neb.  291 ; 
Miller  v.  Kendig,  55  Iowa  174;  Carr  v.  Leavitt,  54  Mich.  540;  Monroe  v. 
Snow,  131  111.  126  ;  Snyder  v.  Wolford,  33  Minn.  175;  Benjamin  v.  Zell, 
100  Pa.  St.  33;  Mahagan  v.  Mead,  63  N.  H.  130;  Green  v.  Randal,  51  Vt. 
67;  Sayre  v.  Wilson,  86  Ala.  151;  Von  Trotha  v.  Bamberjrer,  15. Col.  1; 
Michael  v.  Foil,  ICO  N.  C.  178;  Sprague  v.  Bond,  108  N.  C.  382;  Strong 
v.  Kamm,  13  Oregon  172;  Gorham  v.  Herman,  90  Ala.  346;  Walters  v. 
McGuigan,  72  Wise.  155;  Byers  r.  Locke,  93  Cal.  493.  See  Patterson  v. 
Hawley,  33  Neb.  440.  A  verbal  contract  to  pay  a  commission  to  an  agent 
for  his  services  in  buying  or  selling  land  is  valid.  Waterman  Exchange 
v.  Stephens,  71  Mich.  104;  unless  the  commission  is  to  be  paid  in  land. 
McDonald  v.  Maltz,  78  Mich.  685. 


CH.   XII.]  CONTRACTS   FOR   LAND.  357 

is  binding  between  the  parties,  as  no  title  of  either  is  affected 
thereby;  neither  could  be  said  to  own  the  disputed  tract,  as 
neither  had  any  evidence  whatever  of  title  in  it.1  And  the 
same  is  true  of  an  agreement  which  merely  restricts  the  pur- 
chaser of  land  as  to  the  manner  in  which  or  the  purposes  for 
which  he  shall  use  the  land,  while  at  the  same  time  his  title 
to  it  is  not  impaired,  as,  for  instance,  stipulations  that  he 
shall  not  carry  on  a  certain  trade  or  use  certain  buildings 
upon  the  premises,  or  the  like.2  Nor  is  there  any  reason 
why  the  statute  should  be  held  to  cover  mere  arrangements 
as  to  the  payment  of  .taxes.3 

§  269  a.  Parol  reservations,  by  which  it  is  attempted  to 
except  from  the  operation  of  a  deed  some  interest  in  the 
realty  conveyed  by  it,  are  inoperative  by  the  Statute  of 
Frauds.4 

§  270.  Where  a  deed  has  been  actually  executed  or  a  title 
to  the  land  in  any  way  passed,  agreements  between  the  par- 
ties as  to  pecuniary  liabilities  growing  out  of  the  transaction, 
but  not  going  to  take  any  interest  in  land  from  the  grantee, 
are  not  affected  by  the  statute.6  Thus  an  agreement  releas- 


1  Ante,  §  75.     See  also  Lindsay  v.  Jaffray,  55  Texas  626. 

8  Bostwick  v.  Leach,  3  Day  (Conn.)  476;  Leinau  v.  Smart,  11  Humph. 
(Tenn.)  308;  Fleming  v.  Ramsey,  46  Pa.  St.  252.  But  an  agreement  to 
open  a  street  adjacent  to  the  promisor's  land  has  been  held  to  be  within 
the  statute.  Richter  v.  Irwin,  28  Tnd.  26.  So  an  agreement  not  to  build 
within  three  feet  of  the  street.  Wolfe  v.  Frost,  4  Sandf.  (N.  Y.)  Ch.  72 ; 
and  see  Rice  v.  Roberts,  24  Wise.  461;  Hall  v.  Solomon,  61  Conn.  476. 
An  agreement  for  the  use  of  a  dry  dock,  held  not  an  agreement  for  an 
interest  in  land  in  Wells  r.  Mayor,  L.  R.  10  C.  P.  402. 

8  Preble  v.  Baldwin,  6  Gush.  (Mass.)  549 ;  Brackett  u.  Evans.  1  Cash. 
(Mass.)  79.  See  McCormick  v.  Cheevers,  124  Mass.  262.  A  verbal  sub- 
stitution of  appraisers  of  the  value  of  land  for  those  originally  appointed 
by  writing,  is  not  a  contract  for  any  interest  in  the  land.  Stark  ». 
Wilson,  3  Bibb  (Ky.)  476. 

4  Leonard  ?>.  Clough,  133  N.  Y.  292;  Armstrong  v.  Lawson,  73  Indi- 
ana 498;  Kerr  v.  Hill,  27  W.  Va.  576.  Growing  crops  may  be  so  re- 
served Thompson  v.  Tilton,  34  N.  J.  Eq.  306.  See  ante,  §  256. 

6  McCabe  v.  Fitzpatrick,  2  Leg.  Gaz.  138;  McOuat  v.  Cathcart,  84  Ind. 
567;  Turpie  v.  Lowe,  114  Ind.  37. 


358  STATUTE   OF  FRAUDS.  [CH.   XII. 

ing  damages  for  the  taking  of  land  for  public  uses,1  or  for 
the  use  of  it  by  statutory  privilege,  as  in  certain  cases  of 
flowage,  is  binding  without  writing,2  and  so,  manifestly,  is 
any  special  agreement  to  pay  the  price  of  land  previously 
conveyed.3 

§  271.  A  contract  for  the  sale  or  purchase  of  land  is  within 
the  statute,  though  no  price  be  paid  in  money.  A  verbal 
agreement  for  an  exchange  of  lands,  we  have  seen  in  a  former 
chapter,  was  not  binding;4  and  the  same  is  undoubtedly  true 
when  the  price  of  the  proposed  conveyance  is  to  consist  of 
labor  or  services  of  any  kind,  or,  generally,  of  whatever  the 
law  would  regard  as  a  good  consideration.5 

1  Embury  ».  Conner,  3  N.  Y.  511 ;  Fuller  v.  Plymouth  Commissioners, 
15  Pick.  (Mass.)  81. 

3  Fitch  v.  Seymour,  9  Met.  (Mass  )  462;  Smith  v.  Goulding,  6  Cush. 
(Mass.)  154;  Clement  v.  Durgin,  5  Greenl.  (Me.)  14.  But  when  the  stat- 
ute authorizing  the  taking  of  the  land  contemplates  a  contract  -with  the 
owner,  this  contract  must  be  in  writing.  Phillips  v.  Thompson,  1  Johns. 
(N.  Y.)  Ch.  131. 

8  Qucere,  if  an  agreement  to  discount  for  so  much  as  a  piece  of  land 
granted  shall  fall  short  of  the  amount  named  in  the  deed  is  affected  by 
the  statute.  It  has  been  determined  both  ways  in  early  Connecticut 
cases.  Mott  v.  Kurd,  1  Root,  73;  Bradley  v.  Blodget,  Kirby,  22.  The 
former  of  these  cases,  however,  was  referred  to  as  law  by  the  Supreme 
Court  of  Indiana  in  Green  v.  Vardiman,  2  Blackf.  324.  See  also  Dyer  P. 
Graves,  37  Vt.  369 ;  and  Metcalf  v.  Putnam,  9  Allen  (Mass.)  100.  An 
agreement  to  pay  an  increased  price  for  land  if  coal  were  found  in  it,  has 
been  held  void  by  the  statute  in  Virginia.  Heth  v.  Wooldridge,  6  Rand. 
605.  See  also  Garret  ».  Malone,  8  Rich.  (S  C.)  Law,  335 ;  Howe  v. 
O'Mally,  1  Murph.  (N.  C.)  287;  Fraser  v.  Child,  4  E.  D.  Smith  (X.  Y.) 
153;  Sherrill  v  Hagan,  92  N.  C.  345. 

*  Ante,  §  76;  Purcell  v.  Miner,  4  Wall.  (U.  S.)  513. 

6  Burlingame  v.  Burlingame,  7  Cowen  (N.  Y.)  92 ;  Jack  v.  McKee, 
9  Pa.  St.  235;  Helm  v.  Logan.  4  Bibb  (Kv.)  78 ;  Baxter  v.  Kitch,  37  Ind. 
554;  Bowling  ».  McKenney,  124  Mass.  478;  Slocum  v.  Wooley,  43  N.  J. 
Eq.  451.  See  post,  §  293. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        359 


CHAPTER  XIII. 

AGREEMENTS  NOT  TO   BE   PERFORMED   IN   A   YEAR, 

§  272.  IN  that  clause  of  the  Statute  of  Frauds  which  we 
have  now  to  consider,  we  perceive  still  another  restriction 
placed  upon  the  formation  of  binding  contracts  by  mere  ver- 
bal understanding.  We  have  seen  that  all  verbal  promises 
to  answer  for  the  debt,  default,  or  miscarriage  of  another,  all 
agreements  made  upon  consideration  of  marriage,  and  all 
contracts  for  an  interest  in  real  estate,  must  be  reduced  to 
writing,  in  order  that  any  action  may  be  supported  upon 
them  or  advantage  taken  of  them ;  and  we  shall  hereafter  see 
that  the  same  is  true  of  certain  bargains  for  goods,  wares, 
and  merchandise.  All  these  provisions  relate  to  the  subject- 
matter  of  the  contract.  But  that  which  is  at  present  before 
us  relates  to  the  period  of  the  performance  of  the  contract. 
It  manifestly  includes  them  all  to  a  certain  extent ;  that  is, 
a  contract  which  any  one  of  them  would  render  invalid  on 
account  of  the  subject-matter,  may  be,  so  to  speak,  doubly 
invalid  if  it  is  not  to  be  performed  within  a  year.1 

1  It  is  so,  for  instance,  with  a  contract  in  consideration  of  marriage. 
Paris  v.  Strong,  51  Ind.  339.  Or  mutual  promises  to  marry.  Ullman  v. 
Meyer,  10  Fed.  Rep.  241;  Derby  r.  Phelps,  2  N.  H.  515;  Lawrence  v. 
Cooke,  56  Me.  193;  Nichols  v.  Weaver,  7  Kans  373.  But  see  Brick 
v.  Gannar,  36  Hun  (N.  Y.)  52.  Or  with  executory  contracts  for  such 
short  leases  as  would  be  valid  in  e*se.  See  Delano  r.  Montague,  4  Cush. 
(Mass.)  42;  Roberts  r.  Tunnell,  3  T.  B  Mon.  (Ky.)  247;  Wilson  v. 
Martin,  1  Denio  (N.  Y.)  602;  Comstock  ».  Ward,  22  HI.  248;  Atwood 
v.  Norton,  31  Ga.  507;  Strehl  v.  D'Evers,  66  HI.  77;  Beiler  v.  Devoll,  40 
Mo.  App.  251  ;  Wolf  r.  Dozer,  22  Kansas,*  436;  .Tellett  r.  Rhode.  43 
Minn.  166;  Brown  v.  Kayser,  60  Wise.  1.  But  as  to  the  law  in  NPW 
York  since  the  last  revision  of  the  statutes,  see  Young  v.  Dake,  5  N.  Y. 


360  STATUTE  OF  FRAUDS.  [CH.  XIIL 

§  273.  Postponing  the  questions,  what  is  the  performance 
of  such  an  agreement,  and  what  the  meaning  of  the  limita- 
tion as  to  time,  we  are  first  to  ascertain  the  force  of  the 
words  "  to  be  performed. "  And  on  these  words  much  reason- 
ing has  been  expended.  The  result  seems  to  be  that  the 
statute  does  not  mean  to  include  an  agreement  which  is 
simply  not  likely  to  be  performed,  nor  yet  one  which  is 
simply  not  expected  to  be  performed,  within  the  space  of 
a  year  from  the  making ;  but  that  it  means  to  include  any 
agreement  which,  by  a  fair  and  reasonable  interpretation  of 
the  terms  used  by  the  parties,  and  in  view  of  all  the  circum- 
stances existing  at  the  time,  does  not  admit  of  performance 
according  to  its  language  and  intention,  within  a  year  from 
the  time  of  its  making.1 

§  274.  Suppose  that  the  parties  make  no  stipulation  as  to 
time  ;  but  the  performance  of  the  agreement  depends  either 
expressly  or  by  reasonable  implication  upon  the  happening  of 
a  certain  contingency  which  may  occur  within  the  year.  In 
such  case  it  is  settled  upon  authority  and  reasonable  in  prin- 
ciple that  the  statute  shall  not  apply.  The  agreement  may 
be  performed  entirely  within  the  year,  consistently  with  the 
understanding  and  the  rights  of  the  parties.  There  are  many 
cases  which  illustrate  this  rule,  and  which  may  be  conven- 
iently divided  into  classes,  for  the  purpose  of  showing  more 
clearly  the  extent  of  the  rule. 

463,  overruling  Croswell  v.  Crane,  7  Barb.  191;  also  Tabard  v.  Roose- 
velt, 2  E.  D.  Smith  (N.  Y.)  100.  See  also  Sobey  v.  Brisbee,  20  Iowa 
105;  Jones  v.  Marcy,  49  Towa  188;  Fall  v.  Hazelrigg,  45  Tnd.  576.  But 
see  Wolke  ».  Fleming,  103  Tnd.  105;  Worley  v.  Sipe,  111  Tnd.  238.  See 
also  Baynes  v.  Chastain,  68  Tnd.  376;  Cole  r.  Wrigbt,  70  Tnd.  179:  Whit- 
ing r.  Ohlert,  52  Mich.  462;  Sears  r.  Smith.  3  Col.  287.  But  see  Stern 
v.  Nysonger,  69  Towa  512  The  statement  in  Taggard  v.  Roosevelt, 
supra,  that  the  section  in  the  New  York  Statute  of  Frauds  applies  only 
to  contracts  for  goods,  etc.,  and  not  to  those  for  an  interest  in  land,  is 
not  supported  by  other  New  York  cases.  See  Cayuga  R  R.  Co.  r  Niles, 
13  Hun  (N.  Y.)  170.  Quaere  if  an  agreement  to  make  a  lease  within  one 
year  is  within  the  year  clause  of  th«  statute,  whatever  be  the  length  of 
the  tprm.  B*>™r  c.  Flues,  64  N.  Y.  518. 
i  Po<t,  §  279. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        361 

§  275.  Cases  where  the  thing  promised  is  in  terms  to  be 
done  when  a  certain  event  occurs  which  may  occur  within  a 
year ;  as,  for  instance,  to  pay  money  on  the  day  of  the  prom- 
isor's marriage,1  to  leave  it  by  will  (the  promise,  of  course, 
taking  effect  in  the  event  of  the  promisor's  death),2  or  that 
his  executor  shall  pay  it;3  to  pay  on  the  death  of  a  third 
party4  upon  the  termination  of  a  suit;6  to  pay  when  a  sum 
of  money  is  received  by  the  promisor  from  a  third  person, 
which  payment  may  be  made  within  the  year ; 6  to  marry  at 
the  end  of  a  voyage,  which  voyage  may  be  accomplished 
within  the  year ; 7  to  marry  upon  restoration  to  health ; 8  to 
save  a  party  harmless  from  signing  an  obligation,  which 
obligation  may  be  forfeited  within  the  year, —  are  not  within 
the  statute.9  Under  this  head  come  contracts  of  insurance, 
where  the  promise  to  pay  is  conditioned  upon  the  happening 
of  the  contingency  within  the  term  of  the  policy.10 

§  276.  Cases  where  the  promise  is  to  continue  to  do  some- 
thing until  an  implied  contingency  occur,  as,  for  instance,  to 
pay  during  the  promisee's  life ; u  to  pay  during  the  life  of 

1  Peter  t?.  Compton,  Skin.  353. 

2  Fen  ton  v.  Emblers,  3  Burr.  1278;  Ridley  v.  Ridley,  34  Beav.  478; 
Izard  v.  Middleton,  1  Des.  (S.  C.)  Ch.  116;  Bell  v.  Hewitt,  24  Ind.  280; 
Jilson  v.  Gilbert,  26  Wise.  637 ;  Wellington  v.  Apthorp,  145  Mass.  69. 
The  case  of  Quaclcenbush  r.  Ehle,  5  Barb.  (N.  Y.)  469,  so  far  as  it 
must  be  taken  to  assert  the  contrary,  is  clearly  opposed  to  prevailing 
authority. 

8  Wells  v.  Horton,  4  Bing.  40. 

4  Thompson  v.  Gordon,  3  Strobh.  (S.  C.)  Law,  196;  King  ».  Hanna, 
9  B.  Mon.  (Ky.)  369;  Frost  v.  Tarr,  53  Ind.  390;  Riddle  v.  Backus,  38 
Iowa,  81 ;  Sword  v.  Keith,  31  Mich.  247. 

6  Derrick  v.  Brown,  66  Ala.  112;  Heflin  r.  Milton,  69  Ala.  354. 

6  Artcher  v.  Zeh,  5  Hill  (N.  Y.)  200. 

7  Clark  v.  Pendleton,  20  Conn.  495.     See  post,  §  280. 

8  McConahey  v.  Griffey,  82  Iowa  564. 
•  Blake  v.  Cole,  22  Pick.  (Mass.)  97. 

10  Walker  v.  Metropolitan  Ins.  Co.,  56  Me.  371;  Wiebeler  v.  Milwaukee 
Ins.  Co.,  30  Minn.  464. 

11  Hutchinson  v.  Hutchinson,  46  Me.  154  ;  Atchison,  T.  &  S.  F.  R.  R. 
0.  English,  38  Kans.  110.     In  Berry  v.  Doremus,  30  N.  J.  L.  399,  this 
rule  seems  to  have  been  overlooked.    See  Tolley  v.  Greene,  2  Sandf. 


362  STATUTE   OF  FEAUDS.  [CH.    XIII. 

another ; 1  to  work  for  another  during  his  life ; 2  to  board  the 
promisee  during  his  life ; 3  to  educate  a  child ; 4  to  support  a 
child;  5  to  pay  during  coverture,6 —  are  not  within  the  stat- 
ute, because  the  contracting  parties  contemplate  that  the  one 
whose  life  is  involved  may  die  within  the  year.  And  so,  of 
course,  whatever  else  be  the  contingency,  provided  it  may 
happen  within  the  year.7 

§  276  a.  Agreements  to  continue  to  do  something  for  an 
indefinite  period,  which  may  be  terminated  at  any  time  by 
either  party;8  or  which  may  be  terminated  by  such  a  change 

(N.  Y.)  Ch.  91,  where  the  Assistant  Vice- Chancellor  intimates  a  distinc- 
tion on  this  point  between  a  contingency  consisting  in  the  happening  of 
an  event  which  neither  party  nor  both  together  can  hasten  or  retard,  and 
the  happening  of  an  event  which  rests  upon  human  effort  and  volition, 
inclining  to  the  opinion  that  in  the  former  case  the  statute  applies.  But 
the  distinction,  as  the  cases  show,  is  entirely  without  foundation  in 
authority,  and  the  same  judge,  in  his  dictum  in  Rhodes  v.  Rhodes,  3 
Sandf.  Ch.  285,  seems  to  have  disregarded  it.  See  it  criticised  in  Blan- 
chard  v.  Weeks,  34  Vt.  589. 

1  Gilbert  v.  Sykes,  16  East  150;  Burney  v.  Ball,  24  Ga.  505;  Wiggins 
v.  Keizer,  6  Ind.  252. 

2  Updike  r.  Ten  Broeck,  32  N.  J.  L.  105,  116;  Kent  v.  Kent,  62  N.  Y. 
560,  affirming  the  doctrine  of  Dresser  v.   Dresser,  35  Barb.  573,  reversed 
on  other  grounds  by  the  Court  of  Appeals.     Pennsylvania  Co.  v.  Dolan, 
6  Ind.  App.  Ct.  109* 

8  Howard  v.  Burgen,  4  Dana  (Ky.)  137.  And  see  Alderman  v. 
Chester,  34  Ga.  152;  Bull  v.  McCrea,  8  B.  Mon.  (Ky.)  422;  Heath  v. 
Heath,  31  Wise.  223;  Harper  v.  Harper,  57  Ind.  347;  Murphy  v.  O' Sul- 
livan, 18  Ir.  Jur.  Ill;  Carr  v.  McCarthy,  70  Mich.  258. 

4  Ellicott  v.  Turner,  4  Md.  476.  In  Wilhelm  v.  Hardman,  13  Md. 
140,  which  followed  the  authority  of  the  preceding  case,  the  circum- 
stances would  seem  to  show  a  period  of  time  fixed  by  the  parties,  which 
should  have  brought  the  case  within  the  statute.  See  Abbott  v.  Inskip, 
29  Ohio  St.  59. 

s  Stowers  v.  Hollis,  83  Ky.  544. 

6  Houghtoii  v.  Houghton,  14  Ind.  505. 

t  White  v.  Hanchett,  21  Wise.  415;  Blake  v.  Voight,  134  X.  Y.  69; 
Railroad  Co.  v.  Staub,  7  B.  J.  Lea  (Tenn.)  397;  Smith  v.  Conlin,  19 
Hun  (N.  Y.)  234;  Sweet  v.  Desha  Lumber  Co.,  56  Ark.  629.  Quaere  if 
the  application  of  this  rule  was  not  sprained  in  Railway  Co.  v.  Wrhitley, 
54  Ark.  199. 

8  Esty  v.  Aldrich,  46  N.  H.  127;  Sherman  v.  Champlain  Trans.  Co., 
31  Vt.  162 ;  Baptist  Ch.  v.  Brooklyn  Fire  Ins.  Co.,  19  N.  Y.  305;  Knowl- 


CH.  XIII.]    AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        363 

in  the  circumstances  of  the  parties  as  will  make  it  unreason- 
able or  unnecessary  that  they  should  be  farther  bound,  the 
contingency  of  such  change  of  circumstances  being  implied 
in  the  nature  of  the  contract,  —  are  not  within  the  statute. 
The  latter  point  may  be  illustrated  by  a  case  in  New  York, 
where  the  defence  to  an  action  for  injury  to  the  plaintiff's 
cattle  by  running  over  them  with  railway  cars,  was  that  the 
plaintiff  had  verbally  agreed  to  build  and  maintain  a  fence 
along  the  railroad  opposite  his  land,  whence  his  cattle 
escaped  on  to  the  track  at  the  time  of  the  injury.  This 
agreement  was  held  not  to  require  a  writing  under  the  Statute 
of  Frauds ;  but  upon  doubtful  ground.  It  would  have  been 
properly  so  held  upon  the  ground  that  the  duration  of  the 
plaintiff's  promise  to  maintain  the  fence  was  obviously 
limited  (though  no  words  said  to  that  effect)  by  the  duration 
of  the  circumstances  of  the  parties  which  led  to  the  making 
of  it.  If  the  road  should  cease  to  be  used  by  the  promisee 
or  its  assigns  for  railway  purposes,  it  is  unreasonable  to  sup- 
pose that  the  fence  was  still  to  be  maintained,  the  reason  for 
maintaining  it  no  longer  existing;  and  this  might  well  hap- 
pen within  the  space  of  a  year,  consistently  with  the  under- 
standing and  rights  of  the  parties.1 

man  ».  Bluett,  L.  R.  9  Exch.  1,  307;  Greene  v.  Harris,  9  R.  I.  401; 
Blakeney  v.  Goode,  30  Ohio  St.  350;  Prout  v.  Webb,  87  Ala.  593; 
Walker  r.  Railroad  Co.,  26  S.  C.  80. 

1  Talmadge  r.  Rensselaer  &  Saratoga  R.  R.  Co.,  13  Barb.  (N.  Y.)  493. 
The  court  took  the  ground,  as  sufficient  for  the  decision  of  the  case,  that 
as  the  contract  was,  by  present  payment  of  the  consideration,  executed 
completely  on  one  side,  the  statute  did  not  apply.  (Upon  this  point  see 
post,  §  286.)  It  seems  that  the  case  can  hardly  be  sustained  except  upon 
the  ground  stated  in  the  text.  In  Pitkin  v.  Long  Island  R.  R.  Co.,  2 
Barb.  Ch.  221,  is  was  held  that  a  mere  executory  agreement  between 
complainant  and  defendant  that  the  latter  should  establish  a  turn-out 
track  near  his  land,  and  stop  there,  as  a  permanent  arrangement,  was 
void.  But  here  the  contract  went  to  create  a  negative  easement  in  the 
property  of  the  railroad  company,  a  right  which  could  not  pass  by  parol, 
and  so  the  case  is  explained  in  Talmadge  v.  Rensselaer  &  Saratoga  R.  R. 
Co.,  supra.  It  must  be  said  that  the  cases  of  Osborne  v.  Kimball,  41 
Kans.  187  and  Baynes  r.  Chastain,  68  Tnd.  376  (cases  of  mutual  con- 
tracts to  maintain  prices  seem  to  be  against  the  view  taken  in  the  text. 


364  STATUTE   OF  FRAUDS.  [CH.   XIII. 

§  276  b.  But  in  a  case  where  a  railway  company  verbally 
agreed  to  lay  a  switch  for  the  use  of  a  saw-mill  owner,  and 
to  maintain  the  same  as  long  as  he  should  need  it,  and  it 
was  made  to  appear  as  matter  of  fact  that  it  was  expected 
and  understood  between  the  parties  that  he  would  need  it  for 
many  years,  the  United  States  Circuit  Court  of  Appeals  for 
the  Fifth  Circuit  held  that  the  Statute  of  Frauds  barred 
action  by  the  mill-owner  against  the  railway  company  for 
breach  of  the  agreement.  The  court  say,  "  "We  think  it  ap- 
pears affirmatively  that  the  agreement  was  not  to  be  per- 
formed within  the  space  of  one  year,  and  that  it  was  void. "  1 

§  277.  Agreements  to  refrain  altogether  from  certain  acts 
are  also  held  not  to  be  within  the  statute ;  such  as  an  agree- 
ment not  thereafter  to  engage  in  the  staging  or  livery  busi- 
ness in  a  certain  town;2  an  agreement  not  thereafter  to 
practise  medicine  in  a  certain  town;3  an  agreement  not 
thereafter  to  sell  or  aid  in  selling  musical  instruments  except 
to  certain  parties.4  In  all  such  cases  the  agreement,  from  its 
nature,  will  be  performed  when  the  party  dies,  and  this  con- 
tingency, though  not  named  by  the  parties,  must  be  in  their 
contemplation  as  one  which  may  happen  within  the  year.5 

1  Warner  v.  Texas  &  Pacific  R.  R.  Co.,  4  U.  S.  Cir.  Ct.  App.  673; 
54  Fed.  Rep.  922.     See  also  Fallen  v.  Chronicle  Publishing  Co.,  1  Mc- 
Arthur  485. 

2  Lyon  v.  King,  11  Mete.   (Mass.)  411.     Observe  the  distinction  be- 
tween this,  and  cases  like  King  ».  Welcome,  5  Gray  (Mass.)  41,  where 
the  time  is  fixed  by  the  parties.     See  §§  281,  282,  post. 

8  Blanding  v.  Sargent,  33  N.  H.  230 ;  Blanchard  v.  Weeks,  34  Vt. 
589;  Welz  v.  Rhodius,  87  Ind.  1. 

4  Hill  v.  Jamieson,  16  Ind.  125.  See  also  Richardson  v.  Pierce,  7 
R.  I.  330;  Worthy  v.  Jones,  11  Gray  (Mass.)  168. 

6  The  case  of  Davey  v.  Shannon,  decided  in  the  Exchequer  Division 
in  1879  (4  Exch.  Div.  81),  is  against  the  rule  stated  in  the  text..  As 
treated  in  argument,  and  by  the  court,  the  agreement  in  question  was  that 
the  defendant  should  not  thereafter  practise  a  certain  trade  in  a  certain 
neighborhood.  "  Prima  facie,"  said  the  court,  Hawkins,  J.,  "  it  was  not 
to  be  performed  within  a  year."  And  starting  with  this  assumption,  he 
applied  to  the  case  the  acknowledged  rule  that  a  contract  which  by  its 
terms  is  not  to  be  performed  within  a  year,  is  not  the  less  within  the 
statute,  because  it  is  made  defeasible  by  a  contingency,  e.  g. ,  the  party's 


OH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        365 

§  278.  Although  a  period  of  more  than  a  year  be  expressly 
allowed  for  the  performance  of  the  agreement,  yet  if  the 
agreement  may  be  substantially  and  reasonably  performed, 
according  to  the  fair  understanding  and  intention  of  the  par- 
ties, within  a  year,  the  statute  will  not  apply.1 

§  278  a.  An  agreement,  in  general  terms,  to  do  a  particular 
act,  no  time  being  specified,  and  the  act  being  such  as  may 
be  performed  by  the  party  promising,  under  the  contract, 
within  a  year,  is  also  saved  from  the  operation  of  the  statute, 
on  the  principles  before  stated.2 

death,  which  may  occur  within  that  period;  and  gave  judgment  for  the 
defendant.  The  proposition  that  an  agreement  to  be  performed  so  long 
as  the  promisor  lives  is  primd  facie  not  to  be  performed  within  a  year, 
can  hardly  stand.  None  of  the  cases  which  are  cited  in  support  of  this 
judgment  presented  such  a  question ;  but  they  all  turned  upon  other  con- 
siderations which  form  the  subject  of  discussion  in  different  parts  of  this 
chapter.  The  statement  of  claim  alleged  that,  "In  or  about  1866,  the 
defendant  entered  into  the  employment  of  the  plaintiff  as  a  foreman  tailor 
for  a  term  of  three  years,  on  the  terms,  amongst  others,  that  if  he  should 
leave  the  plaintiff's  employment,  he  should  not  engage  in  the  service  of 
any  one  carrying  on,  or  himself  carry  on,  the  business  of  a  tailor  or  out- 
fitter, within  five  miles  of  Devonport.  The  defendant,  on  the  expiration 
of  the  said  period  of  three  years,  continued  in  the  employment  of  the 
plaintiff  on  the  like  terms,  except  as  to  the  period  of  employment,  until 
the  end  of  October,  1877."'  The  true  view  of  the  defendant's  agreement 
would  seem  to  be,  that  he  was  to  refrain  from  taking  employment  with 
others  for  at  least  three  years.  If  this  view  were  taken,  the  decision 
would  be  right.  Since  the  foregoing  was  written  the  authority  of  Davey 
v.  Shannon  has  been  repudiated  by  the  Court  of  Appeal  in  McGregor  v. 
McGregor,  in  L.  R.  21  Q.  B.  D.  424.  Post,  §  282  b. 

1  Walker  v.  Johnson,  96  U.  S.  424 ;  Southwell  r.    Beezley,  5  Oreg. 
143;  Hodges  v.  Richmond  Mannf.  Co.,  9  R.  T.  482;  Paris  v.  Strong,  51 
Ind.  339 ;  Plimpton  v.  Curtiss,  15  Wend.  (N  Y.)  336 ;  Kent  r.  Kent,  18 
Pick.   (Mass.)  5(39;    Artcher  v.   Zeh,   5  Hill  (N.  Y.)  200;  Lapham   c. 
Whipple,  8  Mete.  (Mass.)  59  ;  Linscott  v.  Mclntire,  15  Me.  201 ;  Smith 
v.  Westall,  1  Ld.  Raym.  316 ;  Saunders  v.  Kastenbine,  6  B.  Mon.  (Ky.) 
17;  Jones  v.  Pouch,  41  Ohio  St.  146;  Bartlett  v.  Mystic  River  Corpora- 
tion, 151  Mass.  433  ;  Sarles  u.  Sharlow,  5  Dak.  100. 

2  McPherson  v.  Cox,  96  U.  S.  404;  Adams  w.  Adams,  26  Ala.  272; 
Soggins  r.  Heard,  31  Miss.  426;  Suggett  v.  Cason,  26  Mo.  221;  Rogers 
v.  Brightman,  10  Wise.  55;  Marley  v.  Noblett,  42  Ind.  85;  Van  Woert 
v.   Albany  &  Susquehanna  R.  R.  Co.,  67  N.  Y.  538;  Hedges  v.  Strong, 
3  Oreg.  18;  Blair  Town  Lot  Co.  v.  Walker,  39  Iowa  406;  Blackburn  v. 


366  STATUTE  OF  FRAUDS.  [CH.  XHL 

§  279.  It  is  very  clear  that  it  is  immaterial,  upon  the  ques- 
tion of  the  application  of  the  statute  to  a  contract,  that  it  has 
or  has  not  been  performed  within  the  year.1  Otherwise  the 
obligations  of  parties  might  be  avoided  by  any  accident 
which  postponed  their  complete  execution  beyond  the  statu- 
tory period,  though  made  in  good  faith  with  the  expectation 
and  intention  that  they  should  be  executed  within  it.  And 
still  farther,  the  cases  show  that  where  the  happening  of  a 
contingency  may  work  a  satisfaction  or  execution  of  the 
promise,  the  mere  circumstance  that  it  was  not  likely  to 
occur  within  the  year  will  not  bring  the  case  within  the 
statute.  It  would  certainly  add  much  embarrassment  to  the 
duties  of  courts  in  construing  the  statute  if  they  should  be 
obliged  to  entertain  questions  of  probabilities  and  degrees  of 
probability  in  such  cases.  So  long  as  there  is  nothing  in  the 
agreement  itself  to  show  that  the  parties  contemplated,  and 
contracted  with  reference  to  its  happening  after  the  expira- 
tion of  the  year,  it  is  reasonable  to  suppose  that  either  party 
was  to  have  the  benefit  of  the  uncertainty  as  the  fact  might 
result.2  And,  to  advance  still  another  step,  it  can  make  no 
difference  at  what  time  the  contingency  was  expected  to 
occur;3  understanding  by  expectation,  the  judgment  either 

Mann,  85  111.  222 ;  Duff  v.  Snider,  54  Miss.  245  ;  Thomas  v.  Hammond, 
47  Tex.  42.  So  it  was  held  that  an  agreement  to  labor  for  a  year  was 
not  within  the  statute  ;  for  the  plaintiff  might  tender  his  services  imme- 
diately. Russell  v.  Slade,  12  Conn.  455 ;  and  see  Tatterson  v.  Suffolk 
Manuf.  Co.,  106  Mass.  56;  Dougherty  r.  Rosenberg,  62  Cal.  32;  Lorimer 
v.  Kelley,  10  Kans.  228;  Osment  v.  McElrath,  68  Cal.  466;  Raynor  v. 
Drew,  72  Cal.  307;  Niagara  Ins.  Co.  v.  Greene,  77  Ind.  590;  Sines  v. 
Superintendents  of  Poor,  58  Mich.  503;  Gonzales  v.  Chartier,  63  Texas 
36;  Roberts  v.  Summit  Park  Co.,  72  Hun  (N.  T.)  458. 

1  Where   a  contract  as  originally  made  is  to  be  performed  within  a 
year,  a  subsequent  oral  extension  for  a  period  less  than  a  year  is  binding. 
Donovan  v.  Richmond,  61  Mich.  467. 

2  Upon  these  two  points  it  is  unnecessary  to  collate  cases.     They  will 
be  found  stated  in  almost  any  one  of  those  cited.     A  nfe,  §§  275-277. 

8  Roberts  v.  Rockbottom  Co.,  7  Met.  (Mass.)  46 ;  Lockwood  v.  Barnes, 
3  Hill  (N.  Y.)  128;  Clark  «?.  Pendleton,  20  Conn.  495;  Randall  v. 
Turner,  17  Ohio  St.  262.  'The  suggestion  of  a  different  doctrine  by 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        367 

party  may  have  formed  upon  the  probabilities  of  the  case,  and 
always  supposing  that  such  expectation  has  not  so  entered 
into  their  bargain  that  the  disappointment  of  it  would  pre- 
vent the  bargain  from  being  considered  executed  and  per- 
formed so  as  to  be  binding  upon  them.  The  statute,  finding 
them  perfectly  free  to  make  a  certain  contract,  without  a 
writing,  provides  simply  that  if  that  contract  does  by  its 
terms,  expressed,  or,  from  the  situation  of  the  parties,  rea- 
sonably implied,  require  more  than  a  year  for  its  perform- 
ance, they  must  put  it  in  writing.  In  other  words,  it  must 
affirmatively  appear  from  the  contract  itself  and  all  the  cir- 
cumstances that  enter  into  the  interpretation  of  it,  that  it 
cannot  in  law  be  performed  within  the  space  of  a  year  from 
the  making.1 

§  280.  There  is  a  decision  of  the  Supreme  Court  of  New 
York,  however,  which  it  would  seem  cannot  be  supported, 
unless  a  distinction  be  adopted  as  to  the  nature  of  the  con- 
tingency. The  parties  there  orally  agreed  that  one  of  them 
should  have  a  colt  at  a  price  to  be  paid  on  delivery,  the  colt 
to  be  got  by  his  stallion  out  of  the  other's  mare,  and  the  lat- 
ter to  keep  the  mare  in  his  possession,  and  to  keep  the  colt 
until  the  ordinary  weaning  time,  or  until  it  was  four  or  six 
months  old ;  and  the  court  considered  that,  as  the  common 
period  of  gestation,  eleven  months,  and  the  common  period  of 
weaning,  four  to  six  months,  would  carry  the  performance  of 
the  contract  to  the  fifteenth  or  seventeenth  month  from  the 
time  of  making  it,  the  statute  applied.2  But  in  this  case, 

Redfield,  J.,  in  Hinckley  v.  Southgate,  11  Vt.  428,  seems  to  stand  quite 
unsupported.  See,  however,  the  dissenting  opinion  of  Morgan,  J.,  in 
Dresser  v.  Dresser,  35  Barb.  (N.  Y.)  584. 

1  Walker  v.  Johnson,  96  U.  S.  424;  Lawrence  v.  Cooke,  56  Me.  187; 
Sutphen  v.  Sutphen,  30  Kansas  510;  Hinkle  v.  Fisher,  104  Ind.  84;  Dur- 
ham v.  Hiatt,   127  Ind.  514;  Warren  Chemical  Co.  v.  Holbrook,    118 
N.  Y.  586;  Duffy  r.  Patten,  74  Me.  396;  Sterling  Organ  Co.  p.  House, 
25  W.  Va.  64;  Schultz  v.  Tatum,  35  Mo.  App.  136 ;  Barton  v.  Gray.  57 
Mich   622;  Farwell  v.  Tillson,  76  Me.  227;  Kiene  r.   Shaeffing,  33  Xcb. 
21 ;  Powder  River  Live  Stock  Co.  v.  Lamb,  38  Neb.  339. 

2  Lockwood  v.  Barnes,  3  Hill  (N.  Y.)  128 ;  Groves  v.  Cook,  88  Ind. 
169. 


368  STATUTE   OF   FRAUDS.  [CH.    XIII. 

gestation  might  be  completed  and  the  young  weaned  within 
the  year,  notwithstanding  the  ordinary  course  of  nature  would 
require  some  months  longer.  Or  suppose  the  case  of  a  con- 
tract to  erect  a  certain  building,  which,  in  the  ordinary 
course  of  business,  could  not  be  erected  under  two  years,  or 
to  do  something  on  the  completion  of  a  voyage  which  would 
ordinarily  occupy  two  years ; *  extraordinary  exertion  in  the 
former  case  or  extraordinary  weather  in  the  latter,  might 
bring  about  within  the  space  of  a  year  the  event  upon  which 
the  obligation  was  to  take  effect.  It  would  seem  to  be  push- 
ing the  rule,  that  possibility  of  performance  within  the  year 
makes  the  contract  good,  to  an  extreme  which  sacrifices  the 
spirit  of  the  statute  to  its  letter,  to  hold  that  in  such  cases 
as  these  it  does  not  apply.  Perhaps  it  is  proper  to  limit  that 
rule  so  far  as  to  say  that,  though  the  period  of  the  execution 
of  the  contract  may  arrive  within  a  year  from  the  making, 
yet  if  that  cannot  possibly  occur  in  the  natural  course,  of 

1  In  Clark  ».  Pendleton,  20  Conn.  495,  the  declaration  alleged  that  the 
defendant  being  about  to  embark  on  a  whaling  voyage,  and  to  be  absent 
from  the  United  States  for  about  the  term  of  eighteen  months  as  was  then 
expected,  in  consideration  that  the  plaintiff  had  at  his  request  promised 
to  marry  him  when  thereto  requested  after  his  return  from  said  voyage, 
he,  etc.,  undertook,  etc.,  to  marry  her,  etc.,  alleging  defendant's  return 
after  about  twenty  months'  absence,  request  to  marry  the  plaintiff,  and 
refusal  to  do  so.  The  Supreme  Court  held  that  the  defendant's  promise 
•was  not  within  the  statute.  They  say:  "  It  is  not  alleged  in  any  form 
that  it  was  made  with  reference  to,  or  that  its  perf ormance  was  to  depend 
on,  the  determination  of  a  voyage  which  would  necessarily  occupy  that 
time.  It  is  only  alleged  that  it  was  expected  by  the  parties  that  the  de- 
fendant would  be  absent  for  the  period  of  eighteen  months.  But  this 
expectation,  which  was  only  an  opinion  or  belief  of  the  parties,  and  the 
mental  result  of  their  private  thoughts,  constituted  no  part  of  the  agree- 
ment itself;  nor  was  it  connected  with  it,  so  as  to  explain  or  give  a  con- 
struction to  it,  although  it  naturally  would,  and  probably  did,  form  one 
of  the  motives  which  induced  them  to  make  the  asrreemant.  ...  It  is 
unnecessary  for  us  to  determine  what  would  be  the  effect  of  proof  that 
the  event  upon  which  the  performance  of  a  verbal  contract  depended, 
could  not  by  possibility  take  place  within  a  year  from  the  making  thereof, 
when  it  did  not  appear  from  the  contract  itself  that  it  was  not  to  be  per- 
formed within  that  time,  because  there  was  no  claim  in  the  present  case 
which  raised  that  point."  See  post,  §§  283,  284. 


CH.  XIII.]    AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        3C9 

events,  the  parties  cannot  be  supposed  to  have  intended  to 
abide  thereby,  and  the  statute  applies.1 

§  281.  Where  the  manifest  intent  and  understanding  of 
the  parties,  as  gathered  from  the  words  used  and  the  circum- 
stances existing  at  the  time,  are  that  the  contract  shall  not 
be  executed  within  the  year,  the  mere  fact  that  it  is  possible 
that  the  thing  to  be  done  may  be  done  within  the  year,  will 
not  prevent  the  statute  from  applying.  Physical  possibility 
is  not  what  is  meant  when  it  is  said  that  if  the  verbal  con- 
tract may  be  performed  within  a  year  it  is  binding.  Or,  to 
speak  exactly,  it  is  not  enough  that  the  thing  stipulated  may 
be  accomplished  in  a  less  time;  but  such  an  accomplishment 
must  be  an  execution  of  the  contract  according  to  the  under- 
standing of  the  parties.2 

§  281  a.  Such  was  the  principle  of  Boydell  v.  Drummond, 
decided  in  the  Queen's  Bench,  in  1809.  The  Boydells  had 
proposed  to  publish  by  subscription  a  series  of  large  prints 
illustrative  of  scenes  from  Shakespeare.  There  were  to  be 
eighteen  numbers  of  the  work,  each  number  to  contain  four 
prints,  and  the  price  to  be  three  guineas  the  number.  The 
defendant  became  a  subscriber.  A  prospectus  issued  by  the 
Boydells,  with  reference  to  which  the  parties  appeared  to 
have  contracted,  set  forth  that  "  one  number  at  least  should 
be  published  annually,  and  the  proprietors  were  confident 
they  should  be  enabled  to  produce  two  numbers  within  the 
course  of  every  year."  The  defendant  having  received  two 
numbers  and  having  refused  to  take  any  more,  this  action 
was  brought  against  him  to  recover  the  price  of  the  remain- 

1  Gault  v.  Brown,  48  N.  H.  1S3,  is  a  case  on  the  border  line.  The  con- 
tract was  for  the  sale  of  all  the  cord-wood  on  a  certain  lot.  to  be  deliv- 
ered, as  far  as  possible,  that  winter,  and  the  rest  the  next.  It  was  held 
not  within  the  statute,  upon  the  ground  that  there  mipht,  possibly  be  full 
performance  within  the  year;  but  the  terms  in  which  the  parties  put 
their  agreement  seem  to  show  that  they  did  not  contemplate  any  such 
possibility,  but.  on  the  contrary,  believed  that  in  the  natural  course  of 
events  a  part  of  the  performance  would  necessarily  be  deferred  to  the 
second  year.  And  see  Sutcliffe  r.  Atlantic  Mills,  13  R.  I.  480. 

1  Farwell  v.  Tillson,  76  Me.  227. 

24 


370  STATUTE    OF  FEAUDS.  [CH.    XIII. 

ing  numbers,  the  Boydells  having  duly  laid  them  aside  for 
him  as  they  came  out.  The  judges  were  unanimous  in  hold- 
ing that  the  statute  applied  to  the  defendant's  engagement. 
Lord  Ellenborough  said:  "The  whole  scope  of  the  under- 
taking shows  that  it  was  not  to  be  performed  within  a  year, 
and  if,  contrary  to  all  physical  probability,  it  could  have 
been  performed  within  that  time,  yet  the  whole  work  could 
not  have  been  obtruded  upon  the  subscribers  at  once,  so  as  to 
have  entitled  the  publishers  to  demand  payment  of  the  whole 
subscription  from  them  within  the  year."1  Grose,  J.,  said 
that,  considering  the  nature  of  the  work  and  of  the  prospectus, 
it  was  "  impossible  to  say  that  the  parties  contemplated  that 
the  work  was  to  be  performed  within  a  year."  And  by  the 
word  contemplated,  it  is  evident  from  the  whole  case  that  he 
meant  understood  as  matter  of  contract.  The  Supreme  Court 
of  Maine,  in  a  case  where  the  contract  was  to  clear  eleven 
acres  of  land  in  three  years  from  date,  one  acre  to  be  seeded 
down  the  present  spring,  one  acre  the  next  spring,  and  one 
acre  the  spring  following,  the  compensation  to  be  all  the  pro- 
ceeds of  the  land  for  these  years,  except  the  two  acres  first 
seeded  down,  also  held  upon  a  similar  view  that  the  statute 
applied.  They  say :  "  It  is  urged  that  the  defendant  might 
have  cleared  up  the  land  and  seeded  it  down  in  one  year,  and 
thereby  performed  his  contract.  .  .  .  We  are  not  to  inquire 
what,  by  possibility,  the  defendant  might  have  done  by  way 
of  fulfilling  his  contract.  We  must  look  to  the  contract 
itself,  and  see  what  he  was  bound  to  do,  and  what,  accord- 
ing to  the  terms  of  the  contract,  it  was  the  understanding 
that  he  should  do.  Was  it  the  understanding  and  intention 
of  the  parties  that  the  contract  might  be  performed  within 
one  year?  If  not,  the  case  is  clearly  with  the  defendant. "  2 

1  Boy  dell  v.  Drummond.  11  East  155.     See  ante,  §§  279,  280. 

2  Herrin  e.  Butters,  20  Me.  122;  Sannders  v.  Kastenbine,  6  B.  Mon. 
(Ky.)  17;  Peters  v.  Westborough,  19  Pick.  (Mass.)  364;  Linscott  v.  Mcln- 
tire,  15  Me.   201;  Hinckley  v.  Southgate,  11  Vt.  428;  Sines  v.  Superin- 
tendents of  Poor,  58  Mich.  503;  Fallen  v.  Chronicle  Publishing   Co.,  1 
McArthur  (D.  of  C.)  485;  Kellogg   v.  Clark,  23  Hun  (N.  Y.)  393.     See 


CH.  XIII.]    AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        371 

§  282.  We  have  thus  far  noticed  a  variety  of  cases,  in 
which  the  contract  contained  no  express  provision  that  the 
thing  to  be  done  should  be  done  for  more  than  one  year  or 
after  the  expiration  of  one  year.  We  now  come  to  the  cases 
of  agreements  which  are  in  terms  to  do  a  thing  during  or 
after  a  definite  period  of  time,  more  than  one  year  from  the 
making  of  the  agreement.  To  such  cases  the  statute  gener- 
ally applies;  and  this  may  be  so,  notwithstanding  that  the 
agreement  may  consistently  with  its  terms  cease  to  be  opera- 
tive in  one  year  or  less.1  Thus,  a  contract  of  hiring  for 
more  than  a  year  is  within  the  statute,  although  it  be  stipu- 
lated that  either  party  may  withdraw  from  the  contract  before 
the  expiration  of  a  year.2  And  a  contract  for  the  use  of  a 
patented  cut-off  on  a  certain  steamboat  for  a  definite  number 
of  years  is  within  the  statute,  although  the  parties  may  recog- 
nize the  possibility  of  the  destruction  of  the  vessel  during 
that  time.8  In  such  cases  as  those  just  cited,  it  cannot  be 

Somerby  v.  Buntin,  118  Mass.  279.  See  also  Eley  v.  Positive  Life  Assur- 
ance Co.,  1  Ex.  Div.  20,  where  an  agreement  to  act  as  solicitor  of  the 
company  was  held  to  be  within  the  statute,  the  fair  inference  from  the 
circumstances  being  that  the  parties  contemplated  that  the  performance  of 
the  contract  should  occupy  more  than  a  year.  But  the  judges  in  their  opin- 
ions made  use  of  expressions  which  certainly  seem  to  be  at  variance  with 
the  doctrines  which  before  had  been  generally  accepted;  for  they  say  that 
inasmuch  as  the  employment  of  the  plaintiff  might  continue  during  his 
life,  therefore  the  statute  would  apply.  And  this  view,  which  did  not,  it 
is  to  be  noticed,  receive  the  sanction  of  the  Court  of  Appeal  (vide  1 
Exch.  Div.  88),  was  followed  by  the  decision  in  Davey  v.  Shannon, 
which  is  criticised,  supra,  §  277,  note.  What  contract  was  made  is,  if 
controverted,  a  question  for  the  jury.  Tatterson  v.  Suffolk  Manuf.  Co., 
106  Mass.  56. 

1  Observe  the  difference  between  this  rule,  and  that  stated  in  §  278, 
where  the  agreement  allowed  a  certain  time,  more  than  a  year,  for  the 
doing  of  the  thing  promised,  but  did  not  require  that  its  doing  should 
continue  through  that  time. 

8  Uobson  ».  Collis,  1  Hurlst.  &  N.  81 ;  Meyer  v.  Roberts,  46  Ark.  80. 
But  see  Smith  v.  Conlin,  19  Hun  (N.  Y.)  234. 

8  Packet  Co.  v.  Sickels,  5  Wall.  (U.  S.)  580;  and  see  Birch  v.  Liver- 
pool, 9  Barn.  &  C.  392 ;  Acraman,  ex  parte,  7  L.  T.  N.  8.  84  ;  Van  Schoyck 
v.  Backus,  9  Hun  (N.  Y.)  68  ;  Deaton  v.  Tennessee  Coal  and  Railroad 
Co.,  12  Heisk.  (Tenn.)  650;  Green  v.  Pennsylvania  Steel  Co.,  75  Md 
109. 


372  STATUTE   OF  FRAUDS.  [CH.   XIII. 

said  that  the  agreement  would  be  fully  performed  when  one 
party  withdrew  from  the  contract  of  hiring,  or  when  the 
vessel  was  lost  or  destroyed ;  wo  should  rather  say,  that  in 
such  event,  the  performance  of  the  agreement  according  to 
its  terms  would  be  frustrated  or  become  impossible. 

§  282  a.  Where  the  agreement  is  in  terms  to  do  a  thing 
during  or  after  the  space  of  one  year,  and  is  personal  in  its 
nature,  not  binding  the  promisor's  representatives,  shall  his 
death,  necessarily  terminating  all  enjoyment  of  the  contract 
on  either  side,  and  being  a  contingency  which  the  parties  of 
course  contemplated,  be  regarded  as  working  a  performance 
of  his  agreement,  or  as  frustrating  and  rendering  impossible 
his  performance  of  it?  Is  such  a  contract,  subject  to  such  a 
contingency,  within  or  without  the  Statute  of  Frauds?  If 
it  could  be  regarded  as  an  open  question,  it  might  present 
much  difficulty.  On  the  one  hand,  it  may  be  argued  that  it 
cannot  matter  for  how  long  a  time  the  promise  was  expressed 
to  run,  if  all  obligation  cease  when  the  promisor  dies;  that 
as  to  all  the  time  after  his  death,  the  promise  is  a  promise 
only  in  name ;  that  it  is  in  substance  a  promise  to  do  a  thing 
for  a  term  of  years,  if  the  promisor  live,  or  in  other  words, 
to  do  it  for  his  life,  not  to  exceed  that  term  of  years.  But 
the  result  of  this  argument  is  to  force  upon  the  Statute  of 
Frauds  an  absolute  limitation  to  contracts  which  do  not  de- 
scend and  bind  the  representative ;  a  limitation  which  seems 
to  be  neither  commended  by  considerations  of  the  policy 
of  the  statute,  nor  justified  by  any  judicial  recognition.  The 
question,  however,  can  hardly  be  regarded  as  an  open  one. 
There  are  numerous  cases  in  which  agreements  to  do  a  thing 
during  or  after  a  definite  term  of  time  longer  than  one  year 
from  the  making,  have  been  held  to  be  covered  by  the  statute, 
notwithstanding  that  the  death  of  the  promisor,  the  agree- 
ment being  of  a  personal  nature,  would  render  further  per- 
formance impossible;1  or  where  the  impossibility  of  carry - 

1  Shute  v.  Dorr,  5  Wend.  (N.  Y.)  204  ;  Roberts  v.  Tucker,  3  Exch. 
632;  Shumate  r.  Farlow,  125  Ind.  359.  See  Wahl  v.  Barnum,  116 
N.  Y.  87. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        373 

ing  on  performance  of  the  contract  to  the  full  end  of  the 
stipulated  time  arises  upon  the  death  of  another  than  the 
promisor.1 

§  282  6.  A  distinction  has  been  made  where  the  agreement 
is  to  refrain  from  doing  a  thing  for  a  definite  term  longer 
than  one  year.  In  the  case  of  Doyle  v.  Dixon,  in  Massachu- 
setts,2 the  action  was  upon  an  oral  agreement  that  the 
defendant  would  not  engage  in  a  certain  trade  at  a  certain 
place  for  the  term  of  five  years,  and  the  agreement  was  held 
not  to  be  within  the  statute,  because  it  was  fully  performed 
if  the  promisor  performed  it  as  long  as  he  lived ;  the  court 
distinguishing  between  an  agreement  to  do  a  thing  and  an 
agreement  not  to  do  a  thing,  for  a  certain  definite  time, 
more  than  a  year.  Oil  the  other  hand,  the  courts  of  Ohio 
and  Missouri,  disregarding  this  distinction,  have  held  con- 
tracts not  to  engage  in  a  particular  business  for  a  period 
longer  than  a  year,  to  be  within  the  Statute  of  Frauds.3 
The  question  is  not  without  difficulty,  but  upon  the  whole, 
the  weight  of  reasoning  would  seem  to  be  opposed  to  the 
judgment  of  the  Supreme  Court  of  Massachusetts.  They 
treat  the  agreement  as  not  differing  substantially  from  an 
agreement  that  the  party  should  never  in  future  engage  in  a 
certain  business,  saying,  "whether  a  man  agrees  not  to  do 
a  thing  for  his  life,  or  never  to  do  it,  or  only  not  to  do  it  for 


1  Hill  »'.  Hooper,  1  Gray  (Mass.)  131.  The  case  of  Peters  v.  Westbor- 
ough,  19  Pick.  (Mass.)  364,  so  far  as  it  is  contra,  appears  to  be  not  law. 
In  Farrington  v.  Donohoe,  Irish  Rep.  1  C.  L.  679,  the  agreement  was  to 
support  a  child  "  until  she  was  able  to  support  herself,"  and  was  held  to 
be  within  the  statute,  because  it  "  contemplated  an  event  not  to  be  per- 
formed within  a  year,  though,  of  course,  the  agreement  would  have  been 
determined  by  the  collateral  event  —  the  death  of  the  child  —  which  might 
have  happened  within  the  year."  And  see  Murphy  r.  O'Sullivan,  18 
Irish  Jurist,  111:  Goodrich  v.  Johnson,  66  Ind.  259.  But  see  Wooldridge 
v.  Stern,  42  Fed.  Rep.  311. 

8  Doyle  v.  Dixon,  97  Mass.  208.  See  also  Perkins  i>.  Clay,  54  N.  H. 
518. 

«  Gottschalk  v.  Witter,  25  Ohio  St.  76 ;  Self  v.  Cordell,  45  Mo.  345; 
and  see  Davey  v.  Shannon,  4  Exch.  Div.  81. 


374  STATUTE   OF   FRAUDS.  [CH.    XIIL 

a  certain  number  of  years,  it  is  in  either  form  an  agreement 
by  which  he  does  not  promise  that  anything  shall  be  done 
after  his  death,  and  the  performance  of  which  is  therefore 
completed  with  his  life."  This  seems  to  go  the  length  of 
saying,  in  substance,  that  if  the  agreement  does  not  bind  the 
representatives,  the  death  of  the  promisor  completes  his  per- 
formance of  his  agreement,  whatever  the  length  of  time  con- 
templated and  expressly  stipulated  by  the  parties  for  its 
performance ;  and  this,  as  has  been  shown,  is  doubtful  upon 
consideration  of  the  policy  of  the  statute,  and  opposed  to  the 
current  of  authority.  The  cases  of  an  agreement  to  keep  out 
of  a  certain  business  for  a  definite  term  of  years,  and  an 
agreement  to  keep  out  of  it  altogether,  are  not  obviously  the 
same  in  substance  and  effect,  for  the  purposes  of  the  Statute 
of  Frauds.  The  agreement  to  keep  out  of  the  business 
altogether  necessarily  implies  that  the  promisor's  undertaking 
is  completely  performed  if  he  fulfils  it  until  his  death;  noth- 
ing more  can  be  within  the  contemplation  of  the  parties; 
that,  neither  more  nor  less,  is  exactly  what  they  stipulate 
for.1  But  if  the  agreement  be  to  keep  out  of  the  business  for 
a  definite  term  of  years,  it  is  certain  upon  the  face  of  it  that 
the  parties  contemplated  that  the  promisor  would  live  for 
that  term  of  years,  and  that  the  conditions  of  their  bargain 
in  other  respects  were  regulated  in  that  view.  The  fact  of 
his  death  occurring  within  the  first  year  will  render  the  con- 
tract as  to  the  remainder  of  the  term  useless  to  the  other 
party,  and  will  render  its  further  performance  by  the  prom- 
isor impossible ;  but,  as  we  have  seen,  an  agreement  within 
the  statute  is  not  under  such  circumstances  held  to  be  per- 
formed.2 The  distinction  between  an  agreement  to  do  a  thing 
and  an  agreement  not  to  do  a  thing,  for  a  definite  term  of 
years,  would  seem  to  be,  barely  stated,  quite  unsubstantial. 
In  each  case  the  promisor  undertakes  that  during  the  stipu- 
lated term  of  years  he  will  submit  to  and  observe  a  certain 

1  See  §§  277,  277  a,  supra. 

2  Supra,  §§  279,  280;  and  see  Davey  v.  Shannon,  4  Exch.  Div.  85. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        375 

obligation,  which  the  agreement  imposes  upon  him ;  and  in 
each  case,  and  in  the  same  way  in  each  case,  his  death  only 
makes  the  performance  of  that  obligation  for  the  residue  of 
the,  stipulated  time  impossible. 

§  283.  In  cases  where  no  question  of  the  death  of  the 
promisor  or  some  other  party,  or  the  perishing  of  the  sub- 
ject-matter of  the  contract  is  involved,  and  the  only  ques- 
tion is  whether,  by  the  true  construction  of  the  language  used 
by  the  parties,  a  greater  term  than  one  year  is  required  for 
the  due  and  perfect  performance  of  the  agreement,  little  or 
no  difficulty  will  be  found.  An  agreement,  for  instance, 
made  in  January  of  one  year  to  pay  a  sum  of  money  in  March 
of  the  next  year,  is  not  capable  of  execution  within  the  first 
year.  A  tender  before  the  March  specified  would  not  be 
good;  the  promisee  would  not  be  bound  to  accept  payment 
any  sooner.1  So  an  agreement  made  by  one  who  sold  a 
patent-right,  that  he  would  refund  the  price  paid  if  the  pur- 
chaser did  not  in  three  years  realize  the  amount  of  the  profits, 
is  manifestly  within  the  statute.  The  promisee  might  have 
realized  the  amount  in  less  than  a  year,  whereby  the  prom- 
isor would  have  been  discharged  from  his  liability,  but  his 
promise  would  not  take  effect,  and  he  be  liable  to  an  action 
for  the  non-performance,  until  the  expiration  of  the  three 
years.2  So  with  a  contract  to  deliver  a  crop  of  hemp  raised 
the  present  year,  and  that  of  two  succeeding  years.3  So  with 
a  mortgagee's  promise,  at  the  time  of  entering  to  foreclose, 
that  if  he  shall  sell  the  place  he  will  pay  the  mortgagor  all 
he  receives  beyond  the  mortgage  debt;  as  he  cannot  sell  in 

1  Lower  v.  Winters,  1  Cowen  (N.  Y )  263 ;  and  see  Cowles  v.  Warner, 
22  Minn.  449. 

3  Lapham  v.  Whipple,  8  Met.  (Mass.)  59.  See  also  Curtis  v.  Sage,  35 
111.  22.  But  if  the  agreement  be  to  pay  over  money  as  soon  as  received, 
and  it  is  not  due  for  two  years,  but  may  be  received  in  less  than  one,  the 
statute  applies.  Curtis  v.  Sage,  supra. 

8  Holloway  v.  Hampton,  4  B.  Mon.  (Ky.)  415.  See  also  Tuttle  v. 
Swett,  31  Me.  555;  Lawrence  v.  Woods,  4  Bosw.  (N.  Y.)  354 ;  Bartlett 
v.  Wheeler,  44  Barb.  (N.  Y.)  162. 


376  STATUTE   OF  FRAUDS.  [CH.    XIII. 

less  than  three  years  the  statute  applies.1  An  agreement  for 
the  payment  of  money  by  instalments  at  less  than  a  year 
each,  the  entire  payment  to  occupy  more  than  a  year,  is 
within  the  statute.2  An  agreement  to  pay  a  certain  sum  of 
money  per  annum  is  manifestly  within  the  statute ; 3  but  if 
the  payments  are  to  be  in  instalments  at  less  than  a  year, 
and  no  term  be  fixed  for  the  completion  of  the  payments,  the 
statute  does  not  apply.4 

§  284.  It  need  hardly  be  remarked  that  an  oral  agreement 
to  put  in  writing  a  contract  which  will  require  more  than  a 
year  to  perform,  is  within  the  statute,  and  no  action  will  lie 
for  its  non-performance.6 

§  285.  The  next  question  is,  What  is  that  performance 
within  the  space  of  a  year  from  the  making,  the  possibility 
of  which  removes  a  contract  from  the  reach  of  this  provision 
of  the  statute.  One  thing  is  well  settled  and  admitted  in  all 
cases;  that  the  contract  must  be  capable  of  entire  and  com- 
plete execution  within  the  year.  It  is  not  enough  that  it 
may  be  commenced,  or  ever  so  nearly  completed  in  that  space 
of  time.6  In  certain  kinds  of  contracts,  however,  as  where  a 
series  of  things  is  to  be  done,  occupying  in  the  whole  more 
than  a  year,  but  each  item,  as  it  is  performed,  drawing  with 
it  a  separate  liability  therefor,  the  statute  does  not  prevent 
an  action  upon  such  items  as  are  performed  within  the  year, 


1  Frary  v.  Sterling,  99  Mass.  461. 

2  Hill  r.   Hooper,  1  Gray  (Mass.)  131.     See  also  Tiernan  v  Granger, 
65  111.  351,  and  post,  §  285. 

8  Giraud  v.  Richmond,  2  C.  B.  835;  Drummond  v.  Burrell,  13  Wend. 
(N.  Y.)  307 ;  Parks  w.  Francis,  50  Vt.  626. 

4  Moore  v.  Fox,  10  Johns.  (N.  Y.)  244,  referred  to  and  explained  in 
Drnmmond  v.  Burrell,  supra.  See  Knowlman  v.  Bluett,  supra,  §  276  a, 
and  post,  §  285,  as  to  cases  in  which  some  items  of  an  agreement  are  to 
be  performed  within  a  year,  and  are  separable  from  the  rest.  See  also 
Sprague  v.  Foster,  48  111.  App.  140. 

6  Amburger  v.  Marvin,  4  E.  D.  Smith  (N.  Y.)  393 ;  and  see  §  177, 
supra. 

6  Groves  v.  Cook,  88  Ind  169.  But  see  Brown  v.  Throop.  59  Conn. 
596. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        377 

to  recover  the  stipulated  pro  rota  compensation.  Thus  it 
was  held  by  the  Court  of  Common  Pleas,  that  upon  a  contract 
for  twenty-four  numbers  of  a  periodical  work,  to  be  delivered 
monthly  at  a  guinea  a  number,  the  plaintiff  might  sue  for 
the  numbers  actually  delivered,  although  the  contract  was 
not  reduced  to  writing.  And  they  distinguished  this  case  (as 
one  of  a  divisible  contract)  from  Boydell  v.  Drummond,  on 
the  ground  that  there  the  defendant  had  paid  for  all  the  num- 
bers he  had  actually  received,  and  the  action  was  upon  that 
part  which  remained  executory.1  But,  as  may  be  inferred 
from  the  reasoning  of  the  judges  in  the  latter  case,  it  is  not 
true  that  because  certain  items  of  a  divisible  contract  may  be 
performed  within  the  year,  an  action  may  be  sustained  for  a 
breach  of  those  items,  thus  severing  what  the  contract  made 
continuous.2 

§  286.  A  rule  has  been  announced  within  a  few  years,  in 
England,  which  requires  very  careful  examination;  namely, 
that  if  all  that  is  to  be  performed  on  one  side  is  to  be  per- 
formed within  a  year  from  the  making  of  the  contract,  the 
statute  does  not  apply  to  it,  and  an  action  will  lie  for  the 
non -performance  of  the  other  stipulations.  The  first  intima- 
tion of  this  doctrine  is  found  in  Boydell  v.  Drummond,  where 
the  counsel  for  the  plaintiff  insisted  that  by  accepting  the 
earlier  numbers  of  the  Shakespeare  the  defendant  had  taken 
the  case  out  of  the  Statute  of  Frauds  by  part  execution,  and 
compared  it  to  selling  and  delivering  goods,  on  thirteen 
months'  credit,  without  writing,  in  which  case,  if  no  evi- 
dence could  be  given  of  the  terms  of  payment,  as  part  of  the 
contract,  the  vendor  would  not  be  bound  by  the  stipulated 
price,  and  the  jury  could  only  give  a  verdict  for  the  value 
of  the  goods;  but  Lord  Elleuborough  said  that  there  the 
delivery  of  the  goods  would  be  a  complete  execution  on  one 

1  Mavor  ».  Pyne,  3  Bing.  285.  See  ante,  §  282,  in  regard  to  cases 
where  a  sum  of  money  is  agreed  to  be  paid  in  less  than  semi-annual 
instalments.  And  see  Winters  v.  Cherry,  78  Mo.  344. 

a  Boydell  v.  Drummond,  11  East  142;  Holloway  t>.  Hampton,  4  B. 
Mon.  CKy.)  415. 


378  STATUTE   OF   FRAUDS.  [CH.    XIII. 

part  within  the  year,  and  the  question  of  consideration  only 
would  be  reserved  for  the  future.  Nothing  is  given  in  the 
report  to  explain  any  further  his  Lordship's  remarks.1  And 
afterwards,  in  Bracegirdle  v.  Heald,  which  was  a  case  of  a 
contract  for  a  year's  service  to  commence  at  a  future  day, 
and  therefore  clearly  within  the  statute,  Mr.  Justice  Abbott 
took  occasion  to  remark  that  when  all  that  was  to  be  done  on 
one  side  was  to  be  done  within  the  year,  as  in  the  case  of 
goods  to  be  delivered  in  six  months  and  paid  for  in  eighteen 
months,  the  contract  would  not  be  within  the  statute.2 

§  287.  The  doctrine,  however,  was  not  directly  decided 
until  the  case  of  Donellan  v.  Read,  in  the  Queen's  Bench, 
in  1832.  There  a  landlord,  who  had  demised  premises  for  a 
term  of  years  at  £50  a  year,  agreed  with  his  tenant  to  lay  out 
.£50  in  making  certain  improvements  upon  them,  the  tenant 
agreeing  to  pay  an  increased  rent  of  £5  a  year  during  the 
remainder  of  the  term  (fifteen  years).  It  was  held  that  the 
landlord  having  done  the  work,  he  might  recover  arrears  of 
the  £5  a  year  against  the  tenant,  though  the  agreement  had 
not  been  signed  by  either  party.  Littledale,  J.  (delivering 
judgment  for  the  court),  said :  "  As  to  the  contract  not  being 
to  be  performed  within  a  year,  we  think  that  as  the  contract 
was  entirely  executed  on  one  side  within  a  year,  and  as  it 
was  the  intention  of  the  parties,  founded  on  a  reasonable  ex- 
pectation, that  it  should  be  so,  the  Statute  of  Frauds  does  not 
extend  to  such  a  case.  In  case  of  a  parol  sale  of  goods,  it 
often  happens  that  they  are  not  to  be  paid  for  in  full  till  after 
the  expiration  of  a  longer  period  of  time  than  a  year;  and 
surely  the  law  would  not  sanction  a  defence  on  that  ground, 
when  the  buyer  had  had  the  full  benefit  of  the  goods  on  his 
part."3 

1  Boydell  v.  Drurnmond,  11  East  142. 

2  Bracegirdle  v.  Heald,  1  Barn.  &  Aid.  727. 

8  Donellan  v.  Read,  3  Barn.  &  Aid.  899.  With  regard  to  Mr.  Justice 
Littledale's  hypothetical  case,  it  is  important  to  observe  that  the  agree- 
ment there  may  or  may  not  be  one  to  be  performed  within  the  year.  If 
the  parties  contract,  one  to  deliver  the  goods  now,  and  the  other  to  pay 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        379 

§  288.  Iii  Souch  v.  Strawbridge,  a  few  years  later,  where 
an  action  was  brought  for  board,  lodging,  etc.,  supplied  by 
the  plaintiff  to  a  child  at  the  request  of  the  defendant, 
Tindal,  C.  J.,  remarked  that  the  action  was  brought  for  an 
executed  consideration,  and  the  Statute  of  Frauds  did  not 
apply ;  that  it  meant  only  that  no  action  should  be  brought 
to  recover  damages  in  respect  to  the  non-performance  of  the 
contracts  referred  to;  but,  assuming  that  to  be  otherwise, 
held  that  this  contract  was  saved  from  the  statute  by  the 
fact  that  the  plaintiff  was  by  its  terms  to  keep  the  child  only 
so  long  as  he  thought  proper,  and  it  might,  therefore,  be 
executed  within  the  year.  The  other  judges  concurred  upon 
the  second  point,  but  Coltman,  J.,  said  that  if  it  had  been 
necessary  to  decide  the  case  upon  the  first,  he  should  have 
wished  to  consider  it  because  he  felt  some  difficulty  in  saying 
that  the  plaintiff  might  rely  on  an  executed  consideration, 
when  he  was  obliged  to  resort  to  the  executory  contract  to 
make  out  his  case.1  So  far  it  would  seem  that  the  doctrine 
in  Donellan  v.  Read  was  not  considered  as  settled  in  England. 
In  a  later  case  upon  this  subject,  however,  Cherry  v.  Heming, 
in  the  Court  of  Exchequer,  1849,  that  decision  was  distinctly 
approved  by  Baron  Parke  and  Baron  Alderson.  But  there 
the  point  decided  was  that  the  statute  did  not  apply  to  a 
deed  sealed.2 

§  289.  It  is  much  to  be  regretted  that  the  English  courts 
have  not  had  occasion  to  review  this  doctrine,  and  definitely 
decide  upon  it.  For  it  does  not  appear,  unless  Sweet  v.  Lee  3 

for  them  more  than  a  year  hence,  the  fact  that  the  buyer  will  have  the 
full  benefit  of  the  goods  is  immaterial,  since  it  was  intended  by  the  con- 
tract that  he  should.  If  on  the  other  hand  the  money  is  presently  due, 
and  the  seller  then  sees  fit  to  promise  not  to  sue  within  a  year,  it  is  this 
new  contract  that  is  within  the  statute,  the  old  one  remaining  good, 
though  the  remedy  be  suspended  by  the  seller's  own  act. 

1  Souch  v.  Strawbridge,  2  C.  B.  808. 

2  Cherry  v.  Heming,  4  Exch.  631.     The  doctrine  of  Donellan  r.  Read 
was  alluded  to  with  approval  in   Smith  v.  Neale,  since  decided   in  the 
Common  Pleas.     2  C.  B.  N.  s.  67. 

8  Sweet  r.  Lee,  3  Man.  &  G.  452. 


380  STATUTE   OF  FRAUDS.  [CH.   XIII. 

is  to  be  taken  as  a  direct  judgment  against  it,  that  in  any 
one  instance  it  has  been  necessarily  involved.  Even  in 
Donellan  v.  Read  the  plaintiff  was  entitled  to  recover  upon 
his  count  for  money  paid  to  the  defendant's  use,  without 
resorting  to  the  special  agreement.1  In  our  own  courts 
there  appears  to  be  a  disposition  to  follow  that  case.  It  has 
been  followed  in  Rhode  Island.2  In  Maine,  the  doctrine 
laid  down  by  it  has  been  distinctly  and  strongly  affirmed, 
but  unnecessarily,  the  plaintiff  in  the  case  before  the  court 
(as  is  stated  in  the  opinion)  being  entitled  to  recover  on  the 
common  counts.3  In  Massachusetts,  it  was  on  one  occasion 
apparently  admitted  to  be  law,  but  no  judgment  was  passed 
or  required  to  be  passed  upon  it;  and  it  has  recently  been 
distinctly  rejected.4  In  New  Hampshire,  the  decisions  are 
conflicting.6  The  Southern  and  Western  courts  have  gener- 
ally approved  it;6  but  it  has  been  criticised  in  Mississippi 7 

1  See  Knowlmau  v.  Bluett,  L.  R.  9  Ex.  307,  on  appeal. 

*  Durfee  v.  O'Brien,  16  R.  I.  213. 

8  Holbrook  v.  Armstrong,  10  Me.  31. 

4  Cabot  v.  Haskins,  3  Pick.  83.  In  Marcy  v.  Marcy,  9  Allen  8,  the 
English  doctrine  is  criticised  with  great  ability,  and  its  defects  ex- 
hibited. See  also  Frary  v.  Sterling,  99  Mass.  461. 

6  See  the  doctrine  approved  in  Blanding  v.  Sargent,  33  N.  H.  239; 
Perkins  v.  Clay,  54  N.  H.  518;  disapproved  in  Emery  v.  Smith,  46  N.  H. 
151.  citing  earlier  decisions  with  approval.  See  Cocheco  Aqueduct  Asso- 
ciation v.  B.  &  M.  R.  R.,  59  N.  H.  312. 

6  Ellicott  v.  Turner,  4  Md.  476 ;  Hardesty  v.  Jones,  10  Gill  &  J. 
(Md.)  404 ;  Johnson  v.  Watson,  1  Ga.  348  ;  Rake  v.  Pope,  7  Ala.  161 ; 
Bates  ».  Moore,  2  Bailey  (S.  C.)  614;  Gully  r.  Grubbs,  1  J.  J.  Marsh. 
(Ky.)  387;  Holloway  v.  Hampton,  4  B.  Mon.  (Ky.)  415;  Blanton  v.  Knox, 
3  Mo.  241;  Suggett  v.  Cason,  26  Mo.  221  ;  Self  v.  Cordell,  45  Mo.  345; 
McClellan  v.  Sanford,  26  Wise.  595;  Miller  v.  Roberts,  18  Tex.  16;  Zabel 
v.  Schroeder,  35  Tex.  308;  Compton  v.  Martin,  5  Rich.  (S.  C.)  Law,  14; 
Haugh  v.  Blythe,  20  Ind.  24;  Curtis  v.  Sage,  35  111.  22 ;  Atchison,  T.  &  S. 
F.  R.  R.  v.  English,  38  Kansas  110;  Washburn  v.  Dosch,  68  Wise.  436; 
Smalley  v.  Greene,  52  Iowa  241 ;  Piper  v.  Fosher,  121  Ind.  407;  Dant  v. 
Head,  90  Ky.  255  ;  Smock  v.  Smock,  37  Mo.  App.  56.  In  Berry  v.  Dore- 
mus,  30  N.  J.  L.  399,  the  doctrine  is  approved,  although,  as  it  would 
seem,  unnecessarily,  in  view  of  the  application  to  the  case  of  the  rule 
noticed,  §  276,  supra.  In  Montague  v.  Garnett,  3  Bush  (Ky.)  297,  the 
recovery  is  said  to  be  not  on  the  contract,  but  the  implied  promise. 

i  Duff  v.  Snider,  54  Miss.  245. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        381 

and  Ohio.1  In  New  York,  on  the  other  hand,  the  Supreme 
Court  have  expressed  very  strong  dissatisfaction  with  it,  and 
with  great  force  of  reasoning.2 

1  Reinheimer  v.  Carter,  31  Ohio  St.  579. 

2  Broadwell  v.  Getman,  2  Denio  87,  the  criticism  upon  which  in  Tal- 
madge  v.   Rensselaer  &  Saratoga  R.  R.  Co.,  13  Barb.  493,  seems  to  be 
quite  unnecessary,  the   latter  case  being  rightly  decided  upon  another 
point.     (Ante,  §  278.)     See  also   Bartlett   v.    Wheeler,   44   Barb.   162; 
Dodge  ».  Crandall,  30  N.  Y.  294 ;  Weir  v.  Hill,  2  Lans.  282. 

The  Supreme  Court  of  Vermont,  in  a  case  decided  in  1855,  but  not  pub- 
lished till  after  the  first  edition  of  this  treatise  was  in  print,  have  come  to 
a  conclusion  directly  opposite  to  the  views  expressed  in  Douellan  v.  Read, 
and  upon  precisely  the  grounds  upon  which  Douellan  v.  Read  is  criticised 
iu  the  text.  The  respectability  of  the  tribunal,  and  the  marked  ability 
of  the  opinion  of  the  court,  delivered  by  Chief  Justice  Redfield,  justify, 
upon  a  point  so  important,  the  transcription  here  of  the  entire  opinion, 
in  which  the  facts  sufficiently  appear,  and  which  was  as  follows  :  — 

"  This  is  an  action  of  assumpsit  upon  a  promise  to  pay  the  plaintiff  the 
money  paid  out,  and  interest,  if  he  would  subscribe  for  fifty  shares  in  the 
stock  of  the  Vermont  Central  Railroad  Company,  and  pay  the  amount  of 
them,  as  the  assessments  fell  due,  which  was  within  one  year,  if,  after  one 
year,  the  plaintiff  should  elect  not  to  keep  them,  but  to  transfer  them  to 
the  defendant.  And  if  the  plaintiff  did  then  elect  to  keep  them,  and  they 
were  above  par,  he  was  to  pay  the  defendant  half  the  advance.  Tt  is 
claimed,  on  the  part  of  the  defendant,  that  this  is  a  contract  within  the 
Statute  of  Frauds,  as  not  to  be  performed  within  the  year  from  its  date, 
and  not  being  in  writing. 

"  And  it  is  replied  to  this,  that,  as  it  was  to  be  performed,  upon  one 
side,  within  the  year,  that  takes  it  out  of  the  operation  of  this  portion  of 
the  statute,  and  the  case  of  Donellan  r.  Read,  3  Barn.  &  Ad.  889, 23  Eng. 
C.  L.  R.  215,  is  relied  upon.  There  can  be  no  doubt  such  a  doctrine  is 
declared  in  this  case;  but  it  is  severely  questioned  by  Smith,  in  his  Lead- 
ing Cases,  1  vol.  p.  145,  et  seq. ;  and  in  the  American  note  it  is  said,  that 
it  has  been  generally  held,  in  this  country,  'that  it  [the  statute]  applies 
in  all  cases  where  the  obligation  or  duty  sought  to  be  enforced,  could  not 
have  been  fulfilled  within  the  year,  and  that  an  oral  promise  for  the  pay- 
ment of  money,  or  the  performance  of  any  other  act,  at  a  greater  distance 
of  time  than  one  year,  is  consequently  invalid,  whether  made  upon  an  exe- 
cuted or  executory  consideration,'  citing  Cabot  v.  Haskins,  3  Pick.  83; 
Lockwood  v.  Barnes,  3  Hill  128;  Boardwell  v.  Getman,  2  Denio  87. 

"  And  the  chief  difference  between  the  case  of  Donellan  v.  Read  and 
the  other  cases  is,  that  in  the  former  case  it  is  laid  down  that  if  one  party 
is  to  perform  and  does  perform  all  of  his  part  of  the  contract,  that  takes 
the  case  out  of  the  statute  ;  and  in  the  American  cases  cited,  and  in  one 


382  STATUTE   OF   FEAUDS.  [CH.    XIIL 

§  290.  It  may  well  be  doubted,  indeed,  whether  this  doc- 
trine would  ever  have  been  accepted  in  England,  if  the  ques- 

late  English  case,  Souch  v.  Strawbridge,  2  C.  B.  808,  by  Tindal,  C.  J., 
it  is  said  that  to  entitle  the  party  to  recover  on  his  part-performance 
within  the  year,  when  the  other  party  was  not  bound  to  perform  within 
the  year,  it  must  appear  that  the  performance,  on  the  part  of  the 
plaintiff,  was  accepted  on  the  other  side,  or  that  it  went  to  the  benefit 
of  the  other  side.  And  just  here  it  seems  to  us  comes  the  proper  dis- 
tinction. 

"  If  the  contract  has  been  performed  on  one  side,  in  such  a  manner  that 
the  performance  goes  to  the  benefit  of  the  other  party,  whether  this  was 
done  within  the  year  or  iiot,  it  undoubtedly  lays  the  foundation  of  a  recov- 
ery against  the  party  benefited  by  such  performance.  But  when  the  con- 
tract, on  the  part  of  this  party,  was  not  to  be  performed  within  one  year 
from  the  time  it  was  made,  the  recovery  is  not  upon  the  contract,  but  upon 
the  quantum  meruit,  or  valebat,  or  upon  money  counts.  It  is  a  recovery 
back  of  the  consideration  of  a  contract  upon  which  no  action  will  lie,  and 
which  has  been  repudiated  by  the  other  party. 

"  And  in  the  present  case,  if  the  plaintiff  could  be  treated  as  the  mere 
agent  of  the  defendant,  in  making  this  subscription  and  payment  of  money 
and  the  stock  as  being  the  defendant's  stock,  standing  in  the  name  of  the 
plaintiff,  there  would  certainly  be  no  difficulty  in  the  plaintiff  recovering 
the  money  and  interest.  And  this  is  the  view  taken  of  the  plaintiff's  case 
by  the  learned  counsel  on  his  behalf,  and  it  is  the  only  ground  upon  which 
it  seems  to  us  the  action  can  be  maintained,  consistently  with  a  fair  and 
reasonable  construction  of  the  statute.  For  the  statute  is  explicit,  that 
no  action  shall  be  maintained  upon  any  agreement  not  to  be  performed 
within  the  year.  It  is  that  portion  of  the  agreement,  or  the  contract  sued 
upon,  which  comes  within  the  statute,  by  not  being  to  be  performed 
within  the  year,  and  not  that  portion  of  the  agreement  which  constitutes 
the  consideration  of  the  promise  sued  upon.  It  will  make  no  difference 
in  regard  to  recovering  the  price  of  the  consideration,  whether  it  is  paid 
down,  or  paid  within  the  year,  or  after  the  expiration  of  the  year;  or 
whether  it  is  agreed  to  be  paid  at  one  time  or  another.  If  it  has  been 
paid,  so  as  to  go  for  the  benefit  of  the  other  party,  at  any  time,  and 
he  does  not  perform  the  contract  on  his  part,  a  recovery  may  be  had,  but 
not  upon  the  special  contract,  if  not  to  be  performed  in  the  year,  but  for 
the  consideration  paid  or  performed  by  the  plaintiff,  and  which  came  to 
the  use  of  the  defendants;  and  this  recovery  may  be  had  upon  the  com- 
mon counts,  ordinarily,  it  is  presumed.  See  note  to  3  Pick.  95,  by  Judge 
Perkins,  citing  Lane  r.  Shackford,  5  N.  H.  133;  1  Fairfield  31,  and  1 
Pick.  328;  3  Wen.  219,  and  other  cases. 

"  But  to  say  that  this  takes  the  whole  agreement  out  of  the  operation 
of  the  statute,  is  virtually  disregarding  both  its  terms  and  all  the  benefi- 
cial objects  of  its  adoption.  It  is  the  contract  sued  upon,  which,  by  its 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        383 

tion  had  not  uniformly  arisen  on  cases  where  the  stipulation 
sought  to  be  enforced  related  solely  to  the  payment  of  the 

being  of  the  older  date  than  one  year,  exposes  to  the  evils  of  fraud  and 
perjury.  And  these  evils  are  none  the  less  because  the  consideration  has 
been  performed  within  the  year.  The  consideration  may  be  a  pepper- 
corn or  a  thousand  dollars  ;  it  may  be  money,  labor,  goods,  or  a  counter- 
promise,  and  it  may  be  executed  or  executory,  and  the  danger  of  fraud  or 
perjury  is  not  materially  increased  or  diminished.  The  danger  of  fraud 
and  perjury  is  chiefly  connected  with  the  proof  of  that  portion  of  the 
contract  sued,  and  if  that  is  not  to  be  performed  within  the  year,  in  our 
judgment,  no  action  can  be  sustained  upon  the  contract  or  agreement, 
consistently  with  a  fair  interpretation  of  the  statute ;  and  this,  we  think, 
is  the  only  consistent  result  of  the  decided  cases  upon  this  point. 

"  The  case  of  Donellan  v.  Read  was  where  improvements  upon  premises 
in  the  occupancy  of  a  tenant,  had  been  made  at  his  request,  upon  a  con- 
tract to  pay  an  increased  rent  during  the  remainder  of  his  term,  which 
was  more  than  one  year.  He  enjoyed  the  benefit  and  use  of  the  improve- 
ments, and  declined  to  pay  for  them.  The  court  held  the  contract  not 
within  the  statute.  This  was  immaterial  to  the  recovery.  The  defend- 
ant had  received  the  benefit  of  the  improvements,  and  had  agreed  to  pay 
£5  for  the  use  annually.  This  contract  was  not  binding,  or  could  not  be 
sued  specially,  but  a  recovery  could  be  had  for  the  use,  and  that  is  all  this 
case  decides;  the  declaration  containing  the  count  for  use  and  occupa- 
tion, and  the  money  counts.  It  is  like  the  case  of  a  contract  to  demise 
premises  for  five  years,  without  writing.  Xo  action  can  be  maintained 
upon  the  contract.  But  if  the  defendant  occupy  the  premises,  a  recov- 
ery may  be  had  for  the  use  and  occupation,  and  the  agreed  rent  may  be 
adopted,  as  the  probable  value  of  use.  So  the  argument  of  Littledale,  J., 
in  this  case,  which  seems  to  have  been  regarded  by  him  as  quite  conclu- 
sive, is  nothing  more  than  saying,  if  one  party,  after  having  received  goods 
or  money  on  a  contract  within  the  Statute  of  Frauds,  repudiates  the  con- 
tract, he  must  answer  for  the  money  or  goods.  It  is  said  this  case  has 
been  reaffirmed  in  a  late  case  in  the  Exchequer,  Cheney  [Cherry]  v. 
Heming,  4  Exch.  631.  But  as  it  does  not  go  further  than  Donellan  n. 
Read,  it  requires  no  further  answer;  it  is,  indeed,  far  more  questionable 
than  Douellan  v.  Read.  And  Holbrook  v.  Armstrong,  1  Fairfield  31, 
which  is  sometimes  referred  to  upon  this  point,  as  confirming  the  case  of 
Donellan  v.  Read,  is  only  a  recovery  for  money  or  goods  which  came  to 
the  defendant's  use. 

"  We  must  then  fall  back  upon  the  ground  quoted  from  Mr.  Wallace's 
note,  and  the  cases  referred  to,  that  no  recovery  can  be  had  if  the  contract 
sued  upon  was  not  in  writing  and  not  to  be  performed  within  one  year. 
And  no  recovery  can  be  had  upon  the  consideration  unless  it  has  come  to 
the  defendant's  use. 

"  To  apply  this  to  the  present  case,  no  question  is  made  that  the  de- 


384  STATUTE  OF  FRAUDS.  [CH.   XIII. 

money  consideration.  In  such  cases  it  is  a  mere  point  of 
form  in  bringing  the  action,  the  plaintiff's  right  to  recover 

fendant's  portion  of  the  contract  was  not  to  be  performed  within  the  year, 
inasmuch  as  one  full  year  was  to  expire  before  the  plaintiff  made  his 
election  whether  to  transfer  the  stock  to  the  defendant  or  not,  and  this 
was  to  determine  the  defendant's  obligation.  If  the  plaintiff  elected  to 
keep  it,  he  could,  and  the  profits,  for  that  term,  were  to  be  divided.  If 
he  elected  to  transfer,  the  defendant  was  to  pay  him  the  money  he  had 
paid  out,  and  interest,  and  the  profits  to  be  divided  between  them,  the 
defendant  to  pay  half  the  advance  in  price ;  so  that  clearly  the  defendant 
could  not  know  what  was  the  nature  of  his  obligation  till  after  the  year 
had  expired.  This  is  the  plaintiff's  own  version  of  the  facts.  The  witness, 
Warner,  finally  said  he  thought  the  defendant  guaranteed  the  stock  to 
be  good  at  the  end  of  the  year,  or  that  he  would  then  take  it  and  pay 
the  cost  and  interest,  and  half  the  advance  in  price,  if  any.  But  all 
the  testimony  gives  one  full  year  before  ihe  defendant's  obligation  at- 
tached ;  of  course  it  could  not  be  performed  within  the  year. 

"  Upon  the  point  whether  the  payment  of  the  money  came  to  the  de- 
fendant's use,  so  that  it  may  be  recovered  back,  it  seems  very  clear  to  us 
that  it  did  not.  The  plaintiff  himself  says  that  he  had  an  election  to 
keep  the  stock  himself,  at  the  end  of  the  year.  The  stock  was  not  then 
to  become  the  defendant's  till  the  end  of  the  year,  and  there  is  no  pre- 
tence it  ever  did  become  his,  so  as  to  vest  any  title  or  use  in  him,  unless 
a  proxy  may  be  so  regarded,  and  we  think  this  is  no  use  for  which  any 
recovery  can  be  had. 

"  In  looking  in  the  cases,  the  leading  case  of  Peter  v.  Compton  is  a  full 
authority  to  show  that  it  makes  no  difference  as  to  the  binding  force  of  a 
contract,  not  to  be  performed  within  the  year,  that  is  performed  within 
the  year  upon  one  side.  In  that  case  the  consideration  was  paid  down. 
And  this  case  is  not  questioned,  except  that  incidentally  it  is  said  to  be 
limited  by  Donellan  v.  Read.  But  Tindal,  C.  J.,  puts  this  upon  the  true 
ground,  in  Souch  v.  Strawbridge,  2  C.  B.  808,  that  there  may  always  be 
a  recovery  when  there  has  been  full  performance  on  one  side,  accepted. 
or  which  comes  to  the  use  of  the  other.  But  in  the  present  case  nothing 
came  to  the  defendant's  use.  So,  too,  in  Broadwell  v.  Getman,  2  Denio 
87,  Beardsley,  J.,  fully  maintains  the  ground  that  if  the  portion  of  the 
contract  sued  was  not  to  have  been  performed  within  the  year,  no  action 
can  be  maintained  upon  the  contract,  and  that  to  hold  the  contrary  is 
virtually  to  disregard  the  statute.  The  same  is  expressly  decided  in 
Lapham  v.  Whipple,  8  Metcalf  59.  Wilde,  J.,  says:  'To  support  the 
action,  the  plaintiff  must  prove  the  contract,  and  the  object  of  this  part 
of  the  statute  was  to  prevent  the  proof  of  verbal  agreempnts,  when,  from 
the  lapse  of  time,  the  witness  might  not  recollect  the  precise  terms  of  the 
agreement.'  And  in  Lockwood  v.  Barnes,  3  Hill  131,  it  is  said,  and  has 
been  so  held  by  this  court,  that  a  recovery  may  always  be  had  for  per- 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        385 

on  the  indebitatus  assumpisit  (which  count  is  uniformly  found 
to  have  been  inserted  in  the  declaration)  being  clear.1  It 
never  has  been  held  in  England  that  an  agreement  to  do 
some  act  after  the  expiration  of  a  year,  in  consideration  of  a 
payment  of  money  made  presently,  was  binding  without  writ- 
ing. And  the  decision  in  Peter  v.  Compton,  that  an  agree- 
ment, for  one  guinea  paid  down,  to  pay  so  many  on  the  day 
of  the  defendant's  marriage,  requires  a  writing,  is  manifestly 
to  the  contrary.2  But  it  is  also  shown  by  that  case,  and  is 
settled  law,  that  a  promise  to  pay  money,  as  much  as  a  prom- 
ise to  do  any  other  act  after  the  expiration  of  a  year,  is 
within  the  statute.8  And  no  substantial  reason  appears  why 
the  mere  circumstance  that  the  counter  stipulation  in  such  a 
case  is  fixed  to  be  performed  within  the  year,  should  hinder 
the  statute  from  applying.  Again,  it  is  not  now  doubted 
that  a  mere  partial  execution  of  a  contract  that  is  required 
by  the  statute  to  be  in  writing,  will  have  no  effect  at  law  to 
-take  it  out  of  the  statute,  though  it  is  often  made  the  basis 

formance,  or  a  part-performance,  on  one  side,  of  a  contract,  within  this  or 
any  other  section  of  the  Statute  of  Frauds,  if  repudiated  by  the  other 
party,  and  this  part -performance  came  to  the  use  of  the  other  party.  But 
the  payment  or  performance  of  the  consideration  of  an  agreement  or  con- 
tract within  any  section  of  the  Statute  of  Frauds,  never  takes  it  out  of 
the  statute;  if  it  were  so,  no  contract  upon  an  executed  consideration 
would  ever  come  within  the  statute.  But  in  all  cases  of  contracts  within 
the  statute,  where  the  promisee  has  done  something  towards  the  perform- 
ance of  the  contract  on  his  part,  and  the  other  party  declines  to  perform 
on  his  part,  a  recovery  of  what  is  thus  done  may  always  be  had,  and  this 
is  all  that  the  performance  of  such  contract  on  one  side  will  avail  at  law, 
and  this  only  when  such  performance  on  one  side  enures  to  the  benefit  of 
the  other  side. 

"Judgment  reversed  and  case  remanded."  Pierce  r.  Paine's  Estate, 
28  Vt.  34.  See  also  the  remarks  of  the  court  upon  Donellan  r.  Read,  in 
Wilson  v.  Ray,  13  Ind.  1.  For  another  valuable  opinion  on  this  point, 
see  Marcy  v.  Marcy,  9  Allen  (Mass.)  8. 

1  Bartlett  v.  Wheeler,  44  Barb.  (N.  Y.)  162;  Emery  ».    Smith,  46 
N.  H.  151. 

2  Peter  v.  Compton.  Skin.  353. 

8  Cabot  v.   Haskins,  3  Pick.  (Mass.)  83,  per  Parker,  C.  J. ;  and  see 
cases  referred  to  in  §§  275,  276,  supra. 

25  ' 


386  STATUTE  OF  FRAUDS.  [CH.  XIII. 

in  equity  of  special  relief  on  the  ground  of  virtual  fraud  in 
the  party  repudiating  the  partially  executed  contract.1  And 
it  is  difficult  to  see  why  an  entire  execution  by  one  party  of 
his  part  of  the  agreement  shall  be  sufficient  to  do  what  is  not 
done  by  his  execution  of  however  large  a  proportion  of  that 
part.  Moreover,  it  is  proper  to  observe,  that  if  the  English 
cases  which  hold  that  the  memorandum  of  the  agreement 
must  show  the  consideration,  because  the1  word  agreement 
embraces  the  stipulations  of  both  sides,  are  right,  those 
English  cases  can  hardly  be  right  which  hold  that  the  same 
word,  in  the  clause  just  preceding,  may  embrace  only  the 
stipulations  of  one  side.2 

§  290  a.  But  suppose  that  what  the  defendant  verbally 
agreed  to  do,  was  to  be  done  within  the  year ;  and  that  what 
the  plaintiff,  in  consideration  thereof,  verbally  agreed  to  do, 
was  to  be  done  after  the  expiration  of  the  year;  can  the 
plaintiff  maintain  his  action  for  damages  for  the  breach  of 
the  defendant's  agreement,  notwithstanding  the  statute?  It 
has  been  decided  by  the  Supreme  Court  of  Vermont  that 
he  could ;  assuming  the  contract  to  be  such  that  the  defen- 
dant's breach  put  an  end  to  it  altogether.  The  case  was  that 
the  defendant  agreed  to  furnish  to  the  plaintiff  a  cow  at  a 
certain  time  within  a  month,  and  allow  him  the  use  of  the 
cow  for  a  year  from  that  time ;  in  consideration  whereof  the 
plaintiff  agreed,  at  the  end  of  the  year,  to  buy  the  cow  or  pay 
for  the  past  use  of  her.  The  defendant  failed  to  furnish  the 
cow,  and  the  plaintiff  sued  for  damages,  and  the  judgment  in 
his  favor  was  affirmed.  The  court  said :  "  The  plaintiff  had 
done  that  by  way  of  adequate  consideration  which,  indepen- 
dently of  the  statute,  would  have  rendered  the  undertaking 
of  the  defendant  valid  and  enforceable  against  him.  Only 
that  which  was  undertaken  by  the. defendant  was  to  be  done 
within  a  year.  That  undertaking  is  here  sued  upon.  His 

1  Post,  Chapter  XTX. ;  and  see  Turnow  v.  Hochstadter,  7  Hun  (N.  Y.) 
80. 

9  Post,  §§  386,  et  seq. 


CH.  XIII.]     AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.        387 

breach  of  it  at  once  perfected  his  liability,  and  the  plaintiff's 
right  of  action.  Looking  to  the  reason  of  the  law,  under  the 
statute,  this  case  stands  for  the  same  consideration  as  any 
case  in  which  the  cause  of  action  should  arise  from  the  breach 
of  an  agreement  that  had  no  relation  to  the  Statute  of 
Frauds.  Upon  the  occurring  of  such  breach,  the  right  of 
action  would  be  perfected ;  but  the  party  would  be  at  liberty 
to  delay  bringing  his  suit  to  the  last  hour  allowed  by  the 
Statute  of  Limitation  without  affecting  the  right  to  maintain 
the  action.  The  purpose  of  the  Statute  of  Frauds  is  to  pro- 
vide for  a  class  of  cases  in  which  there  cannot  be  an  action- 
able breach  within  the  specified  time.  That  class  embraces 
only  agreements  that  are  not  to  be  performed  within  a  year. 
Such  agreements  as  may  be  wholly  broken  within  the  year, 
and  thereby  give  a  cause  of  action  for  such  complete  breach, 
do  not  fall  within  either  the  letter  or  the  reason  of  the  stat- 
ute. The  present  case  shows  the  matter  in  a  strong  light. 
The  failure  of  the  defendant  to  furnish  the  cow  or  the  money, 
as  he  agreed  to  do,  made  an  end^f  the  whole  arrangement, 
and  left  nothing  further,  either  in  act  or  time,  to  be  done  by 
either  party  toward  the  performance  of  the  agreements  on 
either  side.  The  plaintiff  thereupon  ceased  to  have  anything 
thereafter  to  do  as  matter  of  obligation  to  the  defendant. 
The  defendant  had  nothing  to  do  but  to  pay  the  damage 
caused  by  his  breach  of  agreement,  and  that  breach  consti- 
tuted a  perfected  cause  and  right  of  action  in  the  plaintiff. 
This  being  so,  the  reason  of  the  law  under  the  statute  no 
more  had  application  and  force  than  it  would  have  had  if  the 
time  for  the  performance  of  the  agreement  on  both  sides  had 
been  limited  to  a  period  short  of  a  year  from  the  making 
thereof,  and  the  defendant  had  committed  the  same  breach 
that  he  did  in  this  case.  It  is  proper  further  to  remark  that 
in  all  the  cases  where  the  agreement  has  been  held  to  be 
within  the  statute,  the  action  was  for  the  breach  of  that  side 
of  the  contract  that  was  not  to  be  performed  within  the 

year."1 

1  Sheehy  v.  Adarene,  41  Vt.  541. 


388  STA.TUTE   OF   FRAUDS.  [CH.    XIII. 

§  291.  It  need  only  be  added  to  what  has  been  said  upon 
this  clause  of  the  statute,  that  if  the  time  from  the  making  of 
the  agreement  to  the  end  of  its  performance  exceeds  a  year 
never  so  little,  the  statute  applies ;  for,  in  the  language  of 
Lord  Ellenborough,  "if  we  were  to  hold  that  a  case  which 
extended  one  minute  beyond  the  time  pointed  out  by  the 
statute  did  not  fall  within  its  prohibition,  I  do  not  see  where 
we  should  stop,  for  in  point  of  reason  an  excess  of  twenty 
years  will  equally  not  be  within  the  act."  l  And  a  promise 
by  defendant  to  work  a  year  for  the  plaintiff  beginning  "as 
soon  as  he  could  "  has  been  held  to  be  within  the  statute.2 

§  291  a.   It  should  be  noticed  that  in  some  cases  the  agree 
ment  is  such  that  it  is  performed  as  soon  as  made,  although 
the  rights  growing  out  of  it  may  continue  indefinitely.     Thus 
an  agreement  that  the  plaintiff  should  be  taken  into  partner- 


1  Bracegirdle  v.  Heald,  1  Barn.  &  Aid.  726.    And  see  Nones  v.  Homer, 
2  Hilton  (N.  Y.)  116;  Kelly  v.  Terrell,  26  Ga.  551;  Snelliug  v.  Hunting- 
field,  1  Cromp.  M.  &  R.  20;  Shipley  v.  Fatten,  21  Ind.  169;  Kleeman  t. 
Collins,  9  Bush  (Ky.)  460;  Hearne  v.  Chadbourne,  65  Me.  302;  Sharp 
v.  Rhiel,  55  Mo.  97;     Briar  v.  Robertson,  19  Mo.  App.  66;  Cole  v.  Sing- 
erly,  60  Md.  348;  Sutcliffer.  Atlantic  Mills,  13  R.  I.  480;  Britain  v.  Ross- 
iter,  L.  R.  11  Q  B.  D.  123.     The  case  of  Cawthorne  v.  Cordrey,  13  C.  B. 
x.  s.  406,  is  not  at  variance  with  this  doctrine,  although  the  head-note  is 
ambiguous  and  might  mislead.     See  the  opening  of  the  argument  of  coun- 
sel supporting  the  rule,  and  remarks  of  Eyre,  C.  J.     But  see  Dickson  ». 
Frisbee,  52  Ala.  165. 

2  Sutcliffe  v.  Atlantic  Mills,  13  R.   I.  480.     See  also  Ward  v.  Mat- 
thews, 73  Cal.  13,  where  the  plaintiff  sued  for  the  possession  of  land  of 
which  he  held  the  legal  title,  but  the  defendant  (in  possession)  claimed 
that  it  was  held  in  trust  for  him  under  a  verbal  agreement  to  take  and 
hold  it  as  security  only  for  his  repayment  of  plaintiff's  advance  of  part 
of  the  purchase-money;  the  repayment  was  to  be  at   a  time  originally 
fixed  within  a  year  from  the  time  of  the  verbal  agreement,  but  (before 
the  year  expired)  extended  for  six  months;  but  before  the  year  expired, 
the  plaintiff  took  the  deed  to  himself  and  repudiated  his  verbal  agree- 
ment with  the  defendant ;  it  was  held  that  after  such  repudiation,  "  time 
was  no  longer  of  the  essence  of  the  contract,"  an  order  refusing  to  enter 
judgment  for  the  plaintiff  was  affirmed;  the  court  holding  the  defendant 
entitled  to  the  land  on  repayment  to  the  plaintiff  of  his  advance  in  ac- 
cordance with  the  verbal  agreement  between  them. 


OH.  XIII.]      AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A  YEAR.       389 

ship  with  the  defendant,  was  held  to  have  been  performed 
when  the  plaintiff  was  admitted,  although  the  partnership 
business  was  the  prosecution  of  a  building  contract  extending 
over  more  than  a  year.  Such  an  agreement  is  manifestly 
not  within  the  statute.1 

§  291  b.  A  distinction  which  has  been  made 2  between 
agreements  that  the  promisor  will  himself  do  something 
requiring  more  than  a  year,  and  agreements  that  some  third 
party  shall  do  it,  holding  the  statute  to  be  inapplicable  to 
the  latter,  seems  to  be  unsubstantial. 

1  M'Kay  v.  Rutherford,  13  Jur.  21 ;  and  see  Hoare  v.  Hindley,  49  Cal. 
274.  But  see  Johnson  v.  Reading,  36  Mo.  App.  306.  Parol  extensions 
of  less  than  one  year  each,  of  a  contract  agreed  to  be  performed  within  a 
year,  are  not  required  to  be  in  writing.  Donovan  v.  Richmond,  61  Mich. 
467;  Ward  v.  Matthews,  73  Cal.  13.  It  would  seem  that  an  agreement 
made  before  the  issue  of  letters  patent  to  work  the  same  jointly  and  be 
jointly  interested  in  the  proceeds  might  be  better  sustained  upon  this 
ground  than  upon  the  ground  that  the  contract  might  be  entirely  per- 
formed within  a  year.  See  Fraser  v.  Gfetes,  118  111.  99.  Ordinarily  the 
expected  and  contemplated  term  of  sfrch  a  contract  would  be  for  the 
whole  life  of  the  letters  patent. 

a  Blanton  v.  Knox,  3  Mo.  342. 


390  STATUTE   OF  FRAUDS.  [CH.   XIV. 


CHAPTER  XIV. 

SALES   OF   GOODS,    ETC. 

§  292.  THE  form  of  the  seventeenth  section  itself  suggests 
a  method  which  will  probably  be  found  convenient  for  its 
consideration ;  and  that  is,  to  examine  in  the  first  place  the 
question,  what  is  a  contract  such  as  is  contemplated  by  it ; 
and  in  the  second  place  the  question,  what  evidence  of  such 
a  contract  it  requires.  The  latter  topic,  however,  embraces 
not  only  the  acceptance  and  receipt  of  part  of  the  goods  sold 
and  the  payment  of  earnest,  formalities  which  are  peculiar 
to  this  section,  but  also  the  making  of  a  written  memorandum 
of  the  bargain,  a  formality  which  applies  also  to  the  fourth 
section  and  the  various  classes  of  contracts  enumerated 
therein.  It  seems  best,  therefore,  to  consider  in  this  chap- 
ter only  those  matters  which  strictly  concern  contracts  for 
the  sale  of  goods,  wares,  and  merchandise,  and  to  postpone 
the  subject  of  the  written  memorandum  to  the  succeeding 
chapter,  where  it  can  be  discussed  singly  and  separately,  and 
in  relation  to  the  general  topic  of  contracts  as  affected  by 
the  statute. 

§  293.  Upon  the  first  of  the  proposed  divisions  of  the  pres- 
ent subject,  our  attention  is  attracted  at  the  outset  to  the 
inquiry,  what  transactions  are  to  be  regarded  as  contracts  for 
the  sale  of  goods,  etc.  As  to  the  character  of  the  parties  the 
statute  makes  no  distinction,  and  the  established  doctrines  of 
the  courts  present  none.  Nor,  as  it  seems,  will  the  contract 
be  any  less  within  the  statute,  because  something  other  than 
money  is  to  be  given  in  return  for  the  goods ;  contracts  of 
barter  being  regarded,  so  far  as  the  Statute  of  Frauds  is  con- 


CH.   XIV.]  SALES   OF   GOODS,  ETC.  391 

cerned,  as  contracts  of  sale.1  It  was  at  one  time  doubted 
whether  the  policy  of  the  statute  extended  to  sales  at  public 
auction,1  but  it  is  now  settled  beyond  dispute  that  it  does, 
and  that  sheriffs'  sales  in  execution  are  also  included  by  its 
provisions.2  Another  distinction,  which  has  been  supposed 
to  be  established  by  some  of  the  earlier  cases,  was  that  the 
statute  did  not  embrace  executory  contracts  for  the  sale  of 
goods,  etc.,  but  only  those  which  contemplated  an  immediate 
execution.3  But  this  was  manifestly  against  the  intent  and 
spirit  of  the  statute,  and  has,  of  late  years,  been  entirely 
rejected,4  and  those  cases  upon  which  it  was  imagined  that 
it  rested  have  been  shown  to  relate  to  a  distinct  point,  of  great 
importance,  which  we  shall  presently  have  occasion  to  exam- 
ine.6 Nor  is  it  necessary  that  the  contract  should  be  particu- 
larly formal  or  explicit,  so  that  there  appear  to  be  a  bargain 
made ;  a  common  order,  given  to  the  seller  for  the  article  re- 
quired, is  clearly  equivalent  to  a  contract  for  the  purchase.6 
A  stipulation  that  the  subject  of  the  sale  may  be  returned  in 
a  certain  event,  is  not  to  be  regarded  as  a  contract  for  resale, 
so  as  to  be  affected  by  the  statute.  Thus  in  a  case  where  the 
plaintiff  sold  a  mare  to  the  defendant  for  £20,  with  the 
understanding  that  if  she  should  prove  to  be  in  foal  he  might 
have  her  back  again  on  paying  £12,  and  the  mare  was 
delivered  to  the  defendant,  and  afterwards,  when  she  proved 

1  See  Bowling  v.  McKenney,  124  Mass.  478;  Rutan  i>.  Hinchman,  30 
N.  J.  L.  2o5;  Kuhns  ».  Gates,  92  Ind.  66.  See  §  76,  supra. 

1  Simon  v.  Metivier,  1  W.  Bl.  599;  Hiude  v.  Whitehouse,  7  East  558. 

2  Sudden,  Vend.  &  P.  ch.  v.  §  6;  2  Kent,  Comm.  540;  Chitty  on  Con- 
tracts, 272;  and  cases  cited  by  those  authors 

»  Rondeau  v.  Wyatt,  2  H.  Bl.  63;  8.  c.  3  Bro.  Ch.  154;  Alexander  v. 
Comber,  1  H.  Bl.  20;  Towers  v.  Osborne,  1  Stra.  506  ;  Clayton  v.  An- 
drews,  4  Burr.  2101. 

4  Cooper  v.  Elston,  7  T.  R.  14;  Acker  r.  Campbell,  23  Wend.  (N.  Y.) 
372;  Bennett  v.  Hull,  10  Johns.  (N.  Y.)  364;  Ide  v.  Stanton,  15  Vt.  690; 
Carman  v.  Smick,  3  Green  (X.  J.)  Law  252;  Newman  v.  Morris,  4  Harr. 
&  McH.  (Md.)  421;  and  see  Appendix,  Lord  Tenterden's  Act,  9  Geo.  IV. 
c.  14,  §  7.  . 

6  See  post,  §§  299-309. 

6  Allen  v.  Bennet,  3  Taunt.  169. 


392  STATUTE   OF  FRAUDS.  [CH.    XIV. 

to  be  in  foal,  the  plaintiff  tendered  the  £12,  but  the  defend- 
ant refused  to  return  her,  and  set  up  the  Statute  of  Frauds 
as  a  bar  to  any  recovery  on  the  agreement  to  return  her,  the 
Court  of  Queen's  Bench  held  that  it  did  not  apply,  consid- 
ering that  this  stipulation  was  not  an  independent  contract 
of  sale,  but  was  part  of  the  original  contract,  which  was  a 
qualified  one,  and  which  had  been  taken  out  of  the  statute 
by  the  delivery  of  the  mare.1 

§  293  a.  But  it  may  be  necessary  to  distinguish  between 
such  a  case  as  this,  where  the  stipulation  to  return  is  annexed 
to  the  original  sale  by  way  of  condition,  and  the  case  of  a 
stipulation  to  resell  at  a  future  time  for  the  same  or  a  differ- 
ent price,  although  made  contemporaneously  with  the  origi- 
nal sale.  It  must  depend,  it  seems,  upon  whether  the  latter 
is  a  complete  transaction  of  itself,  and,  in  some  degree,  upon 
the  language  used  by  the  parties.  Where  a  partner  upon  the 
formation  of  a  partnership  sold  and  delivered  a  quantity  of 
goods  to  the  firm,  soon  after  which  the  partnership  was  dis- 
solved, and  it  was  agreed  that  his  claim  for  the  goods  should 
be  cancelled  by  his  taking  them  back,  but  there  was  no  writ- 
ten memorandum  on  the  subject  and  no  act  of  acceptance ; 
upon  a  bill  in  equity  brought  by  the  partner  who  had  sold 
the  goods,  alleging  the  sale  and  dissolution,  and  praying  for  a 
decree  that  the  other  partners  should  pay  their  share  of  the 
price  of  the  goods,  it  was  held  that  the  arrangement  by 
which  the  goods  were  to  be  taken  back  was  not  to  be  con- 
sidered as  properly  a  resale  of  them,  or  as  an  independent 
transaction,  but  as  a  mutual  rescission  of  the  original  con- 
tract of  sale,  and  therefore  the  transaction  was  valid  without 
a  written  memorandum  or  act  of  acceptance,  especially 
against  the  petitioner,  who  had  alleged  the  dissolution,  which 

1  Williams  v.  Burgess,  10  Ad.  &  E.  499.  The  case  was  likened  by 
Littledale,  J.,  to  a  delivery  on  trial;  but  it  must  be  observed  that  the 
stipulation  was  to  return,  not  to  receive  back,  and  was  made  in  fa^or  of 
the  vendor,  not  of  the  vendee.  See  Fay  v.  Wheeler,  44  Vt.  292 ;  Wooster 
v.  Sage,  6  Hun  (N.  Y.)  285,  67  N.  Y.  67;  Fitzpatrick  v.  Woodruff,  96 
N.  Y.  561;  Johnson  v.  Trask,  116  N.  Y.  136. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  393 

was  not  in  writing,  and  of  which  the  agreement  for  the  taking 
back  the  goods  was  part.1 

§  293  b.  An  agreement  to  deliver  goods,  wares,  or  mer- 
chandise to  the  amount  of,  and  in  payment  of,  a  pre-existing 
debt,  has  been  held  in  Alabama  2  to  be,  and  in  New  York  3 
not  to  be,  within  the  statute  as  a  bargain  for  the  sale  of  the 
goods,  etc.  The  latter  decision  appears  to  be  the  more  rea- 
sonable. There  is  no  reason  why  the  language  of  the  seven- 
teenth section  should  be  strained  beyond  its  expressed 
limitation  to  such  transactions  as  come  under  the  common 
designation  of  sales  of  goods. 

§  294.  Whether  a  mortgage  of  goods,  wares,  and  merchan- 
dise is  within  the  scope  of  the  Statute  of  Frauds  is,  appar- 
ently, to  be  considered  a  doubtful  question.  The  Supreme 
Court  of  Maine  have  expressed  themselves  not  satisfied  that 
the  statute  was  to  be  so  construed.  They  say  that  the  statute 
"manifestly  contemplates  an  absolute  sale,  where  the  vendor 
is  to  receive  payment  and  the  vendee  the  goods  purchased. 
But  the  mortgagee  is  not  introded  or  expected  to  pay  any- 
thing. His  lien  is  created  to  secure  what  he  is  to  receive. 
Nor  is  he  to  take  possession,  unless  his  security  requires  it. 
That  is  retained  by  the  mortgagor;  and  herein  a  mortgage 
differs  from  a  pledge.  As  this  is  a  contract,  then,  in  which 
neither  payment  nor  delivery  is  expected,  we  are  not  pre- 
pared to  say  that  it  comes  within  the  statute." 4  It  is  mani- 

1  Dickinson  v.  Dickinson,  29  Conn.  600;  Wulschner  v.  Ward,  115  Ind. 
219.     See  Boardman  v.  Cutter,  128  Mass.  388. 

2  Sawyer  v.  Ware,  36  Ala.  675. 

8  Woodford  o.  Patterson,  32  Barb.  630. 

4  Gleason  v.  Drew,  9  Greenl.  79.  Where  A  took  from  B  a  chattel 
mortgage,  which  was  not  recorded,  and  B  sold  the  mortgaged  property  to 
C  and  took  his  note  for  the  price,  and  C  and  A  then  agreed  orally  that,  if 
A  would  take  up  C's  note  and  return  it  to  him,  C  would  deliver  the 
property  to  A,  and  A  took  up  the  note  and  tendered  it  to  C,  who  refused 
to  deliver  the  property;  it  was  held,  on  a  suit  by  A  against  C  for  the 
value  of  the  property,  that  the  agreement  between  A  and  C  was  not  a 
contract  of  sale,  but  an  agreement  by  C  to  waive  his  claim  and  allow  A's 
mortgage  to  take  effect;  and  was  not  within  the  Statute  of  Frauds. 


394  STATUTE   OF  FRAUDS.  [CH.   XIV. 

fest,  however,  that  the  mortgagee  has  paid  something  before, 
or  contemporaneously  with,  the  execution  of  the  mortgage ; 
and  it  is  a  familiar  principle  of  law  that  the  mortgagee  of 
personal  property  may,  and  as  a  general  rule  ought  to,  take 
possession.  Such  a  mortgage  is  simply  a  conditional  or 
defeasible  sale ;  and  where  the  opinion  above  quoted  speaks 
of  an  absolute  sale  as  what  the  statute  manifestly  contem- 
plates, we  should  say  it  must  intend  an  actual  sale,  as 
distinguished  perhaps  from  a  merely  nominal  one;  for 
that  a  defeasible  sale  is  within  the  Statute  of  Frauds  can 
hardly  be  doubted  on  principle,  and  is,  by  implication, 
decided  in  the  English  case  last  referred  to.  But  the 
court  (in  Maine  did  not,  it  will  be  observed,  find  it  neces- 
sary to  place  their  judgment  upon  the  ground  we  have  been 
considering. 

§  294  a.  An  agreement  between  two  parties  to  be  partners 
in  a  sale  of  goods  has  been  held  to  be  not  within  the  statute.1 
But  otherwise  where  the  contract  is  in  substance  for  the  pur- 
chase of  all  the  goods  by  one,  and  a  subsequent  sale  by  him 
of  part  of  them  to  the  other.2 

§  294  b.  An  agreement  between  two  creditors  claiming 
the  same  property  under  rival  executions,  that  the  property 
should  be  sold  under  one  execution  and  the  proceeds  divided 
equally,  is  not  to  be  regarded  as  a  sale  by  either  to  the 
other,  but  simply  as  a  compromise  of  conflicting  money 
claims.3 

§  295.  In  the  next  place,  we  have  to  inquire  what  is  the 
proper  scope  of  the  words  "goods,  wares,  and  merchandise," 

Clark  v.  Duffey,  24  Tnd.  271;  and  see  Phelps  v.  Hendrick,  105  Mass.  106. 
An  agreement  to  mortgage  personal  property  was  held  not  within  the 
statute  in  Alexander  v.  Ghiselin,  5  Gill  (Md.)  180. 

1  Buckner  v.  Ries.  34  Mo.  357  ;  Colt  v.  Clapp,  127  Mass.  476 ;  Bullard 
v.  Smith,  139  Mass.  497.     See  Coleman  v.  Eyre,  45  N.  Y.  38.     As  to  an 
agreement  to  be  a  partner  in  the  real  estate  business,  see  §  262,  ante. 

2  Brown  v.  Slauson,  23  Wise.  244. 

8  Mygatt  v.  Tarbell,  78  Wise.  351.  And  see  Goldbeck  v.  Kensington 
Nat.  Bk.,  147  Pa.  St.  267. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  395 

as  used  in  the  seventeenth  section  to  denote  the  subject- 
matter  of  the  contracts  embraced  by  it.  On  this  point  there 
has  been  considerable  diversity  of  opinion  in  the  courts, 
arising,  it  would  seem,  from  their  having  adopted,  on  the 
one  hand,  that  interpretation  which  is  founded  upon  the 
abstract  legal  signification  of  the  words,  and,  on  the  other, 
that  which  limits  this  signification  by  a  reference  to  the 
other  clauses  of  the  section. 

§  296.  The  most  difficult  class  of  cases  under  this  head  has 
grown  out  of  contracts  for  the  sale  of  shares  or  stocks,  notes, 
checks,  bonds,  and  generally  evidences  of  value  as  distin- 
guished from  palpable  personal  property  having  an  intrinsic 
value.  In  the  early  case  of  Pickering  v.  Appleby,  the  ques- 
tion was  submitted,  as  appears  by  Comyns's  report,  to  all  the 
judges  of  England,  whether  a  contract  for  the  purchase  of 
shares  in  the  stock  of  a  copper  company  was  affected  by  the 
seventeenth  section  of  the  statute,  and  they  were  divided  in 
opinion.1  Subsequently  Lord  Chancellor  King,  in  Colt  v, 
Nettervill,  upon  the  ground  or  that  division,  declined  to  take 
the  responsibility  of  deciding  the  point.2  But  some  years 
later,  and  notwithstanding  the  intervention  of  several  cases 
in  which  a  disposition  was  shown  to  hold  otherwise,3  it 
was  directly  determined  in  England,  and  so  far  as  that 
country  is  concerned  must  be  taken  to  be  settled,  that  the 
statute  is  not  applicable  to  such  contracts.  Such  was  the 
decision  of  Sir  Lancelot  Shadwell  in  Duncuft  v.  Albrecht, 
and  of  Lord  Denman  in  Humble  v.  Mitchell,  cases  which 
have  been  fully  acquiesced  in  by  the  English  courts.4  Both 

1  Pickering  v.  Appleby,  1  Comyns  354. 

a  Colt  v.  Nettervill,  2  P.  Wms.  304. 

8  Mussell  v.  Cooke,  Finch,  Prec.  Ch.  533;  Crull  v.  Dodson,  Sel.  Cas. 
Ch.  41. 

4  Duncuft  r.  Albrecht,  12  Sim.  189;  Humble  v.  Mitchell,  11  Ad.  & 
E.  205;  Heseltine  v.  Siggers,  1  Exch.  856;  Tempest  v.  Kilner,  3  C.  B. 
249;  Bowlby  v.  Bell,  3  C.  B.  284  ;  Bradley  ».  Holdsworth,  3  Mees.  &  W. 
422;  Watson  v.  Spratley,  10  Exch.  222.  See  Pawle  v.  Gunn,  4  Bing. 
N.  R.  445. 


396  STATUTE   OF  FEAUDS.  [CH.   XIV. 

of  these  decisions  proceeded  upon  the  ground  that  shares 
were  mere  choses  in  action,  and  were  not  in  their  nature 
capable  of  that  delivery  and  acceptance  by  the  respective 
parties  to  the  contract  which  the  statute  provides  as  one 
method  of  making  it  binding. 

§  296  a.  The  Supreme  Court  of  Massachusetts  have  taken 
a  different  view  of  the  question.  In  Tisdale  v.  Harris,  they 
decided  that  shares  in  a  manufacturing  corporation  were  to 
be  deemed  included  by  the  words  "goods,  wares,  and  mer- 
chandise." The  opinion  of  the  court,  delivered  by  Shaw, 
C.  J.,  places  the  decision  on  two  grounds;  first,  that  by  cor- 
rect legal  definition  "goods  "  and  "merchandise  "  were  both 
sufficiently  comprehensive  to  include  shares,  and,  secondly, 
that  the  policy  of  the  statute  required  that  they  should  be 
included.  Upon  the  latter  point  he  says :  "  There  is  nothing 
in  the  nature  of  stocks,  or  shares  in  companies,  which  in  rea- 
son or  sound  policy  should  exempt  contracts  in  respect  to 
them  from  those  reasonable  restrictions  designed  by  the  stat- 
ute to  prevent  frauds  in  the  sale  of  other  commodities.  On 
the  contrary,  these  companies  have  become  so  numerous,  so 
large  an  amount  of  the  property  of  the  community  is  now 
invested  in  them,  and  as  the  ordinary  indicia  of  property, 
arising  from  delivery  and  possession,  cannot  take  place,  there 
seems  to  be  peculiar  reason  for  extending  the  provisions  of 
this  statute  to  them. "  He  does  not  consider  the  circumstance 
that  shares  cannot  be  actually  accepted  and  received  as  at  all 
conclusive  of  the  question,  and  says  that  this  seems  to  be 
rather  a  narrow  and  forced  construction  of  the  statute. 
"The  provision  is  general,  that  no  contract  for  the  sale  of 
goods,  etc.,  shall  be  allowed  to  be  good.  The  exception  is, 
when  part  are  delivered,  but,  if  part  cannot  be  delivered,  then 
the  exception  cannot  exist  to  take  the  case  out  of  the  general 
prohibition.  The  provision  extended  to  a  great  variety  of 
objects,  and  the  exception  may  well  be  construed  to  apply 
only  to  such  of  those  objects  to  which  it  is  applicable,  with- 
out affecting  others,  to  which  from  their  nature,  it  cannot 


CH.    XIV.]  SALES   OF   GOODS,   ETC.  397 

apply. "  1     In  the  doctrine  of  this  case  the  Supreme  Court  of 
Connecticut  have  fully  concurred.2 

§  297.  It  has  been  since  still  further  extended  in  Massa- 
chusetts in  the  case  of  Baldwin  v.  Williams,  where  it  was 
held  that  a  contract  for  the  sale  of  promissory  notes  was 
within  the  seventeenth  section.  Wilde,  J.,  who  delivered 
judgment,  said  it  was  certainly  within  the  mischief  thereby 
intended  to  be  prevented,  and  that  the  words  "goods  "  and 
"merchandise,"  both  of  them  of  large  signification,  were 
sufficiently  comprehensive  to  include  promissory  notes ;  apply- 
ing the  definition  merx  est  quicquid  vendi  potest.* 

1  Tisdale  v.  Harris,  20  Pick.  13.     See  Eastern  R.  R.  Co.  p.  Benedict, 
10  Gray  212;  Boardman  v.  Cutter,  128  Mass.  388;  Meehan  v.  Sharp,  151 
Mass.  564. 

2  North  v.  Forest,  15  Conn.  400;  Reed  v.   Copeland,   50  Conn.  472; 
See  also  Fay  i>.  Wheeler,  44  Vt.  292.     An  early  case  in  Maryland,  also, 
Colvin  v.  Williams,  3  Harr.  &  J.  38,  seems  to  be  to  the  same  effect.     But 
in  the  case  of  Webb  v.  Baltimore  &  E.    S.  R.  R.,  77  Md.  92,  the  court 
decide  that  a  contract  of  subscrip^n  to  stock  is  not  within  the  statute, 
and  pronounce  Colvin  v.  Williams  at  best  only  a  dictum  to  the  contrary. 
See  also  Bullock  v.  Falmouth  Co.,  85  Ky.  184,  and  §§  297,  298,  post; 
Hinchman  t;.  Lincoln,  124  U.  S.  38. 

8  Baldwin  v.  Williams,  3  Met.  (Mass.)  365.  The  learned  judge  refers, 
in  support  of  this  judgment,  to  two  prior  decisions  of  the  same  court, 
Mills  r.  Gore,  20  Pick.  28,  and  Clapp  v.  Shephard,  23  Pick.  228,  to  the 
effect  that  a  bill  in  equity  might  be  maintained  to  compel  the  redelivery 
of  a  deed  and  note  of  hand  on  the  provision  in  the  Massachusetts  Re- 
vised Statutes  (c  81,  §  8),  giving  the  court  jurisdiction  in  all  suits  to 
compel  the  redelivery  of  any  goods  or  chattels  whatsoever  taken  and  de- 
tained from  the  owner  thereof  and  secreted  or  withheld  so  that  the  same, 
cannot  be  replevied.  But  it  is  the  deed  and  note,  the  papers  on  which 
they  are  written,  that  the  words  goods  and  chattels  are  held  to  embrace; 
not  the  right,  interest,  or  obligation  represented  by  those  papers,  as  in 
the  case  of  Baldwin  v.  Williams.  There  is  a  decision  of  the  U.  S.  Cir- 
cuit Court,  Riggs  v.  Magruder,  reported  in  2  Cranch  143,  to  the  effect 
that  a  contract  for  the  notes  of  a  private  bank  was  within  the  seventeenth 
section ;  but  the  bench  was  not  full  at  the  time,  and  the  grounds  of  the 
decision  are  not  furnished.  A  contract  for  the  sale  of  gold,  t.  e.  coin, 
was  held  within  the  statute  in  Peabody  v.  Speyers,  56  N.  Y.  230.  And  a 
contract  for  the  sale  of  a  bond  and  mortgage  was  held  to  be  a  contract 
for  the  sale  of  goods,  wares,  or  merchandise  under  the  Statute  of  Frauds 
in  Greenwood  v.  Law,  55  N.  J.  Law  168. 


398  STATUTE   OF  FKAUDS.  [CH.   XIV. 

§  297  a.  In  a  later  case  in  Massachusetts,  however,  a  dis- 
position seems  to  be  manifested  against  further  extending  the 
doctrine.  The  court  there  held  that  a  contract  for  the  sale 
of  an  interest  in  an  invention,  before  letters  patent  obtained, 
was  not  a  contract  for  the  sale  of  goods,  wares,  or  merchan- 
dise; and  they  also  express  the  opinion  that  to  apply  the 
seventeenth  section  to  a  patent  right,  granted  by  the  govern- 
ment, "  would  be  unreasonably  to  extend  the  meaning  and 
effect  of  words  which  have  already  been  carried  quite  far 
enough. "  l 

§  298.  And  it  seems  impossible  to  regard  Judge  Wilde's 
interpretation  as  entirely  free  from  doubt  and  difficulty, 
whether  the  meaning  of  the  words  used  in  the  statute  be 
taken  abstractly  or  in  connection  with  the  context.  That 
merx  est  quicquid  vendi  potest  is  not  to  be  taken  strictly  as 
the  definition  of  this  word,  as  used  in  the  statute,  seems  to 
be  very  clear ;  for  if  it  is,  certainly  goods  and  wares,  if  not 
lands  also,  must  be  embraced  by  it.  Moreover,  it  appears 
by  the  reports  of  those  cases  in  which  first  the  collected 
judges  of  England,  and  afterward  Lord  Chancellor  King, 
failed  to  determine  the  application  of  the  statute  to  sales  of 
shares,  that  in  both  the  same  definition  was  urged  by  coun- 
sel. And  in  regard  to  goods,  also,  it  seems  dangerous  to 
found  a  construction  of  the  statute  on  a  mere  verbal  defini- 
tion. As  was  said  in  one  of  the  superior  courts  of  Georgia, 
where  it  was  held  that  treasury  checks  on  the  Bank  of  the 
United  States  were  not  covered  by  the  seventeenth  section, 
"  In  the  civil  law  it  is  a  term  that  embraces  all  things  over 
which  a  man  may  exercise  private  dominion,  divided  into 
goods  movable  and  immovable.  This  cannot  be  the  sense 
attached  to  the  word  in  the  statute,  for  other  sections  of  it 
treat  of  immovables,  this  alone  of  movables.  Nor  can  it  be 
designed  to  include  every  class  of  movables,  for  wares  and 
merchandise  are  expressly  mentioned,  which  latter  embrace 

1  Somerby  v.  Buntin,  118  Mass.  285.  See  Boardman  v.  Cutter,  128 
Mass.  388. 


CH.   XIV.]  SALES   OF  GOODS,   ETC.  399 

everything  usually  rendered  in  commerce."  And  it  is  added 
that  it  is  "a  fair  construction  of  the  statute  to  limit  the 
meaning  of  the  word  goods  to  such  personal  property,  other 
than  wares  and  merchandise,  as  are  usually  transferred  by 
sale  and  delivery. " 1  This  view,  which,  as  we  have  seen, 
nearly  corresponds  to  that  taken  by  the  English  courts,  ap- 
pears to  be  reasonable.  Indeed,  upon  that  taken  by  the 
earlier  cases  above  cited  of  the  Supreme  Court  of  Massachu- 
setts, the  words  used  in  the  statute  appear  to  be  made  co- 
extensive with  personal  property.2  As  to  the  principle  that 
the  goods,  wares,  and  merchandise  intended  by  the  statute 
must  be  such  as  are  capable  of  acceptance  and  receipt  by  the 
purchaser,  it  is  true  that  there  are  many  cases  3  in  which  sales 
of  articles  not  in  existence  at  the  time  of  the  bargain  have 
been  held  to  be  within  the  statute ;  but  there  the  articles  con- 
tracted for  were  essentially  capable  of  acceptance  and  receipt, 
and  were  to  be,  in  time,  bodily  accepted  and  received  accord- 
ing to  the  contract.  Nevertheless,  the  difficulty  presents 
itself  that  shares  or  stocks,  Sid  even  (though  that  would  be 
far  more  doubtful)  promissory  notes,  bonds,  etc.,  may  become 
in  the  course  of  commercial  development  so  much  the  subject 
of  ordinary  traffic,  that  the  construction  of  the  statute  must 
be  expandpd  so  as  to  make  it  reach  them,  as  being  one  kind 
of  merchandise.4  And  so  with  that  rapidly  enlarging  class 

1  Beers  v.  Crowell,  Dudley  29.     But  see  Walker  v.  Supple,  54  Ga.  178. 

2  In  Florida,  the  expression  used  to  describe  the  subject-matter  of  the 
seventeenth  section   is  "  personal  property,"  which  has,  of  course,  been 
held  to  include  shares.     See  Southern  Life  Ins.  Co.  v.  Cole,  4  Flor.  359. 
In  New  York,  choses  in  action  are  expressly  specified  as  requiring  a  writ- 
ing for  their  sale,  and  the  following  cases  may  be  referred  to  as  illustra- 
tive of  that  enactment.     Allen  v.  Aguirre,  7  N.  Y.  543 ;  People  v.  Beebe, 
1  Barb.  379;  Thompson   v.  Alger,  12  Met.  (Mass.)  428,  which  arose  on 
the  New  York  statute  ;  Armstrong  v.  Cushney,  43  Barb.  340 ;  Tomlinson 
v.  Miller,  7  Abb.  Pr.  N.  s.  364 ;  Doty  v.  Smith,  62  Hun  (N.  Y.)  598.     And 
see  Bank  r.  German  American  Ins.  Co.,  72  Wise.  535. 

•  See  post,  §§  299-309. 

4  Gadsden  v.  Lance,  McMull.  (S.  C.)  Eq.  87.  Since  the  publication 
of  the  first  edition  of  this  treatise,  it  has  been  decided  in  Maine  that 
sales  of  promissory  notes  were  within  the  statute,  and  in  New  Hamp- 


400  STATUTE   OF  FRAUDS.  [CH.  XIV. 

of  transactions,  the  purchase  and  sale  of  patent  rights ;  the 
business,  as  it  has  now  become,  of  many  individuals  and  even 
partnerships  in  this  country.  But  in  a  case  in  the  Court  of 
Exchequer  it  has  been  lately  held  that  the  purchase  of  a  right 
to  use  a  patented  furnace,  which  was  already  erected  by  the 
purchaser,  was  not  within  the  seventeenth  section ; l  and 
although  upon  the  principles  of  the  earlier  Massachusetts 
cases  we  have  quoted,  patent  rights  would  seem  to  be  in- 
cluded in  the  words  of  the  statute  as  there  interpreted,  yet, 
as  we  have  seen,  in  a  later  case,  the  court,  manifesting  a 
disposition  to  restrict  the  application  of  the  statute,  were 
Of  opinion  that  patent  rights  were  not  goods,  wares,  and 
merchandise.2  In  New  York  the  contrary  view  has  been 
expressed  as  to  an  invention  complete  but  unpatented.3 

§  299.  "Several  questions  which  might  require  attention  in 
this  place,  such  as  those  arising  on  contracts  for  the  sale  of 
fixtures  and  growing  crops,  particularly  the  latter,  have  been 
anticipated  in  the  course  of  our  consideration  of  the  fourth 
section  as  it  regards  interests  in  land.  But  a  most  important 
one  remains  to  be  examined,  and  that  is  how  far,  if  at  all, 
the  condition  of  the  goods,  wares,  and  merchandise,  at  the 

shire  and  Indiana  that  they  were  not.  The  Supreme  Court  of  Alahama 
seem  to  hold  the  former  opinion.  Gooeh  v.  Holmes,  41  Me.  523;  Whitte- 
more  v.  Gibbs,  24  N.  H.  484  ;  Vawter  v.  Griffin,  40  Ind.  593 ;  Hudson  v. 
Weir,  29  Ala.  294.  A  book  account  was  held  to  be  within  the  seventeenth 
section  in  Walker  v.  Supple,  54  Ga.  178 ;  shares  in  an  ice  company,  in 
Pray  v.  Mitchell,  60  Me.  430;  land  scrip,  in  Smith  r.  Bouck,  33  Wise.  19, 
and  see  Fine  v.  Hornsby,  2  Mo.  App.  61 ;  May  v.  Thomson.  L.  R.  20  Ch. 
D.  705.  It  has  been  held  in  Wisconsin  that  a  contract  for  the  publication 
of  an  advertisement  in  a  newspaper  was  a  contract  for  the  sale  of  goods, 
chattels,  or  things  in  action  within  the  meaning  of  the  Statute  of  Frauds 
of  that  State.  Goodland  v.  Le  Clair,  78  Wise.  176.  In  New  Jersey  a 
bond  and  mortgage  have  been  held  to  be  goods,  wares,  and  merchandise 
within  the  statute.  Greenwood  v.  Law,  26  Atl.  Rep.  (N.  J.)134. 

1  Chanter  v.  Dickinson,  5  Man   &  G.  253. 

2  Somerby  v.  Buntin,  118  Mass.  279.     See  Gould  ».  Banks,  8  Wend. 
(N.  Y.)  562;  Dalzell  v.  Dueber  Mfg.  Co.,  149  U.  S.  320;  Burr  ».  De  la 
Vergne,  102  N.  Y.  415;  Blakeney  v.  Goode,  30  Ohio  St.  350. 

8  Jones  v.  Reynolds,  120  N.  Y.  213. 


CH.    XIV.]  SALES   OF   GOODS,   ETC.  401 

time  of  making  the  bargain,  is  to  be  regarded  in  determining 
whether  the  statute  will  apply  to  it. 

§  300.  In  Clayton  v.  Andrews,  a  case  early  decided  in  the 
Queen's  Bench,  the  defendant  agreed  verbally  to  deliver  to 
the  plaintiff  a  quantity  of  wheat  at  a  future  day,  for  a  certain 
price,  of  which,  however,  no  part  was  paid  by  way  of  earnest, 
nor  was  there  any  portion  of  the  wheat  accepted  and  received 
by  the  plaintiff  at  the  time,  nor  was  any  memorandum  of  the 
bargain  made  in  writing;  but  the  wheat  was  unthreshed,  and 
of  course  unfit  for  delivery,  when  the  bargain  was  concluded. 
Lord  Mansfield  and  the  other  judges  held,  npon  the  supposed 
authority  of  a  previous  case,1  that  the  statute  did  not  apply, 
for  the  reason  that  the  wheat  was  not  to  be  delivered  immedi- 
ately.2 This  doctrine,  of  the  necessity  of  the  parties'  con- 
templating an  immediate  execution  of  the  bargain  in  order  to 
bring  it  within  the  prohibitions  of  the  seventeenth  section, 
has  long  since  been  abandoned ;  but  the  case  itself  has  often 
been  quoted  as  an  authority  forthe  position  that,  where  work 
and  labor  are  required  to  be  pCTformed  upon  the  article  sold, 
in  order  to  put  it  in  condition  to  be  delivered,  the  statute 
does  not  apply  to  the  contract  of  sale.  This,  however,  as 
will  amply  appear  by  the  cases  to  which  reference  will  be 
presently  made,  is  not  a  tenable  doctrine. 

§  301.  In  Towers  v.  Osborne,  upon  which  the  decision  in 
Clayton  v.  Andrews  was  based,  the  defendant  bespoke  a 
chariot  (to  use  the  language  of  the  report),  and  after  it  was 
made  refused  to  take  it.  In  an  action  for  the  value  of  the 
chariot,  it  was  held  that  the  statute  did  not  apply ;  and  here 
also  the  decision  was  put  upon  the  ground  that  the  statute 
only  related  to  contracts  for  the  sale  of  goods  to  be  delivered 
immediately.  It  was  not  till  long  after  these  two  cases  that 
this  opinion  was  directly  condemned;  and  it  is  a  singular 
fact  that  they  have  been  made  the  foundation  of  a  distinction, 
as  to  the  application  of  the  statute,  not  alluded  to  in  them, 

1  Towers  v.  Osborae,  1  Stra.  506. 
8  Clayton  v.  Andrews,  4  Burr.  2101. 
26 


402  STATUTE    OF   FRAUDS.  [CH.    XIV. 

but  which  is  one  of  the  most  important  on  this  branch  of  our 
subject ;  namely,  the  distinction  which  regards  the  condition 
of  the  article  at  the  time  of  the  bargain.  It  will  be  perceived 
that  Towers  v.  Osborne  differs  from  Clayton  v.  Andrews  in 
this  particular,  that  whereas  in  the  latter  the  wheat  only  re- 
quired the  operation  of  threshing  to  be  performed  to  prepare 
it  for  delivery,  in  the  former  the  chariot  contracted  for  did 
not  exist  at  all.  And  the  courts  have  shown  a  disposition, 
while  doubting  the  authority  of  Clayton  v.  Andrews,  to  place 
the  authority  of  the  other  case  upon  the  simple  ground  of 
that  difference.  Thus,  in  Groves  v.  Buck,  Lord  Ellenborough 
held  that  the  statute  did  not  apply  to  a  contract  for  the  pur- 
chase of  a  quantity  of  oak  pins,  which  were  not  then  made, 
but  were  to  be  cut  out  of  slabs  and  delivered  to  the  buyer ; 
for,  he  said,  the  subject-matter  of  the  contract  did  not  exist 
in  rerum  natura  ;  it  was  incapable  of  delivery  and  part  accept- 
ance ;  and  when  that  was  the  case,  the  contract  had  been 
considered  as  not  within  the  statute.1 

§  302.  In  the  New  York  cases,  this  distinction  between 
contracts  for  an  article  to  be  entirely  manufactured  and  an 
article  already  existing  but  to  be  fitted  for  delivery  by  the 
application  of  work  and  labor,  the  latter  being  within  the 
statute  and  the  former  not,  appears  to  be  adopted  as  decisive 
in  questions  of  this  class.2  But,  as  a  fixed  criterion,  it  is 
liable  to  some  practical  objections.  For  it  may  often  be  a 

i  Groves  P.  Buck,  3  Maule  &  S.  178. 

3  Downs  v.  Ross,  23  Wend.  270;  Sewall  v.  Fitch,  8  Cow.  215;  Crook- 
shank  v.  Bnrrell,  18  Johns.  58;  Robertson  ».  Vaughan,  5  Sandf.  1 ;  Bron- 
son  v.  Wiman,  10  Barb.  406  ;  Donovan  v.  Willson,  26  Barb.  138  ;  Bennett 
v  Hull,  10  Johns.  364 ;  Parsons  ».  Loucks,  48  N.  Y.  17,  Gray,  C.,  dm. , 
Deal  v.  Maxwell,  51  N.  Y.  652;  Bates  v.  Coster,  1  Hun  400.  See  also 
Rentch  v.  Long,  27  Md.  188;  Pawelski  v.  Hargreaves,  47  N.  J.  Law  334. 
The  delivery  to  be  made  of  goods  purchased  has  never  been  considered  as 
work  and  labor  done  upon  them.  Waterman  v.  Meigs,  4  Cush.  (Mass.) 
497;  Jackson  v.  Covert,  5  Wend.  (N.  Y.)  139;  Downs  v.  Ross,  23  Wend. 
(N.  Y.)  270;  Houghtaling  v.  Ball,  19  Mo.  84  ;  Ellison  v.  Brigham,  38  Vt. 
64;  Warren  Chemical  Co.  v.  Holbrook,  118  N.  Y.  586;  Bagley  v.  Walker, 
27  Atl.  Rep.  (Md.)  1033. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  403 

matter  of  great  nicety  whether  the  labor  to  be  applied  to  the 
article  really  amounts  to  constructing  it  or  only  to  preparing 
it ;  as,  for  instance,  where  articles  are  kept  on  hand  by  man- 
ufacturers, in  parts  or  pieces  ready  to  be  put  together.1  And 
it  is  difficult,  also,  to  see  the  reason  for  the  distinction ;  for 
in  either  case  the  article  is  incapable  at  the  time  of  being 
delivered  according  to  the  contract ;  it  is  as  much  so  when 
incomplete  as  when  not  existing. 

§  303.  The  great  body  of  authority,  both  English  and 
American,  has  of  late  proceeded  upon  principles  entirely 
independent  of  this  distinction.  In  a  case  occurring  only  a 
year  after  Groves  v.  Buck,  where  the  contract  was  to  sell 
and  deliver  oil  not  yet  expressed  from  seed  in  the  vendor's 
possession,  it  was  held  by  the  Common  Pleas  to  be  within 
the  exception  of  the  stamp  act  exempting  from  duty  con- 
tracts relating  to  goods,  wares,  and  merchandise;  and  Gibbs, 
C.  J.,  thus  illustrates  the  fallacy  of  the  distinction  referred 
to:  "A  baker  agrees  to  produce  me  a  loaf  to-morrow ;  he  has 
not  the  bread,  but  he  has  the  flour  and  is  to  make  it  into 
bread  and  deliver  it.  How  often  does  a  butcher  contract  to 
deliver  meat  when  he  has  not  the  meat,  and  the  beast  is  not 
yet  killed.  It  is  out  of  all  common  sense  to  say  this  is  not 
a  contract  for  goods,  wares,  and  merchandises."2  Again, 
in  the  case  of  Watts  v.  Friend,  the  Court  of  Queen's  Bench 
held  that  the  seventeenth  section  of  the  statute  applied  to  a 
contract  to  sell  a  crop  of  turnip-seed  not  yet  planted.  Lord 
Tenterden,  C.  J.,  said  that  according  to  good  common  sense 
this  must  be  considered  as  substantially  a  contract  for  goods 
and  chattels,  for  the  thing  agreed  to  be  delivered  would,  at 
the  time  of  the  delivery,  be  a  personal  chattel.8  And  to  the 

1  See  the  case  of  Mixer  v.  Howarth,  21  Pick.  (Mass.)  205,  where  noth- 
ing was  done  but  putting  on  to  the  carriage  contracted  for  a  certain  lining 
selected  by  the  buyer.  See  Bates  v.  Coster,  1  Hun  (N.  Y.)  400,  criticis- 
ing Mead  ».  Case,  33  Barb  (N.  Y.)  202. 

3  Wilks  v.  Atkinson.  6  Taunt.  12. 

»  Watts  v.  Friend,  10  Barn.  &  C.  446.  See  Bowman  v.  Conn,  8  Ind. 
58;  Pitkin  ».  Noyes,  48  X.  H.  294. 


404  STATUTE   OF  FRAUDS.  [CH.   XIV. 

same  effect,  it  will  be  remembered,  is  the  case  of  Smith 
v.  Surman,  which,  like  that  last  quoted,  was  examined  in 
another  chapter  in  connection  with  the  subject  of  contracts 
for  land.1  These  authorities,  with  many  others  to  be  pres- 
ently referred  to,  conclusively  show  that,  so  far  as  the  Eng- 
lish courts  are  concerned,  the  mere  circumstance  that  the 
article  is  not  existing  at  the  time  of  the  bargain  will  not  pre- 
vent the  application  of  the  statute.2 

§  304.  There  is,  however,  a  distinction  taken  in  many 
decisions  between  the  purchase  of  articles  such  as  the  ven- 
dor regularly  manufactures  from  time  to  time  and  has  for 
sale  in  the  ordinary  course  of  his  business,  and  those  which 
he  manufactures  to  order,  though  from  materials  in  his  pos- 
session. Thus,  in  Garbutt  v.  Watson,  where  the  plaintiffs, 
who  were  millers,  verbally  agreed  with  the  defendant,  who 
was  a  corn  merchant,  for  the  sale  of  one  hundred  sacks  of 
flour  to  be  got  ready  to  ship  in  three  weeks,  the  Court  of 
Queen's  Bench  refused  to  set  aside  a  nonsuit  obtained  below, 
holding  that  the  bargain  was  within  the  statute ;  and  when 
the  decision  in  Towers  v.  Osborne  was  urged,  Abbott,  C.  J., 
said  that  in  that  case  "  the  chariot  which  was  ordered  to  be 
made  would  never,  but  for  that  order,  have  had  any  exist- 
ence. But  here  the  plaintiffs  were  proceeding  to  grind  the 
flour  for  the  purposes  of  general  sale,  and  sold  this  quantity 
to  the  defendant  as  a  part  of  their  general  stock.  The  dis- 
tinction is  indeed  somewhat  nice,  but  the  case  of  Towers  v. 
Osborne  is  an  extreme  case,  and  ought  not  to  be  carried 
farther."3 

§  305.  In  Massachusetts  a  similar  view  has  repeatedly  been 

1  Smith  v.  Surman,  9  Barn.  &  C.  561.     See  also  Northern  v.  State,  1 
Ind.  112;  Ellison  r.  Brigham,  38  Vt.  64;  Hanson  v.  Roter,  64  Wise.  622. 

2  The  same  is  true,  as  appears  by  several  of  the  cases  cited,  where  the 
articles  contracted  for  are  not  at  the  time  in  possession  of  the  vendor,  but 
are  expected  to  be  received  by  him  in  season.    See  Bronson  ».  Wiman,  10 
Barb.  (N.  Y.)  406 ;  Seymour  v.  Davis,  2  Sandf.  (N.  Y.)  239;  Ide  v.  Stan- 
ton,  15  Vt.  685. 

8  Garbutt  v.  Watson,  5  Barn.  &  Aid.  613. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  405 

expressed.  In  Mixer  v.  Howarth,  the  facts  were  that  the 
defendant  went  to  the  plaintiff's  shop,  where  the  plaintiff  had 
the  unfinished  body  of  a  carriage,  and  gave  directions  to  him 
to  finish  the  carriage,  putting  in  a  certain  lining  which  the 
defendant  selected.  The  carriage  was  to  be  finished  in  about 
a  fortnight.  The  Supreme  Court  held  that  it  was  essentially 
an  agreement  on  the  plaintiff's  part  to  build  a  carriage  and  on 
the  defendant's  part  to  take  it  when  finished  and  pay  for  it  at 
the  agreed  or  a  reasonable  rate,  but  that  it  was  not  a  contract 
of  sale  within  the  meaning  of  the  Statute  of  Frauds.  Chief 
Justice  Shaw,  who  delivered  the  opinion  of  the  court,  pro- 
ceeds to  say :  "  Where  the  contract  is  a  contract  of  sale, 
either  of  an  article  then  existing,  or  of  articles  which  the 
vendor  usually  has  for  sale  in  the  course  of  his  business,  the 
statute  applies  to  the  contract,  as  well  where  it  is  to  be 
executed  at  a  future  time  as  where  it  is  to  be  executed  im- 
mediately. But  where  it  is  an  agreement  with  a  workman 
to  put  materials  together  and'  construct  an  article  for  the 
employer,  whether  at  an  agreecr  price  or  not,  though  in  com- 
mon parlance  it  may  be  called  a  purchase  and  sale  of  the 
article,  to  be  completed  in  futuro,  it  is  not  a  sale  until  an 
actual  or  constructive  delivery  and  acceptance;  and  the 
remedy  for  not  accepting  is  on  the  agreement."1  So  in 
Lamb  v.  Crafts,  a  later  case  in  the  same  court,  where  a  per- 
son whose  business  was  that  of  collecting  rough  tallow  and 
preparing  it  for  market,  made  an  oral  agreement  with  another 
to  furnish  him  at  a  certain  time  and  place  with  a  certain 
quantity  of  prepared  tallow,  it  was  held  to  be  a  contract  for 
the  sale  of  the  tallow  and  within  the  Statute  of  Frauds.  And 
the  same  eminent  judge  (Chief  Justice  Shaw)  said :  "  The 
distinction,  we  believe,  is  now  well  understood.  Where  a 
person  stipulates  for  the  future  sale  of  articles  which  he  is 
habitually  making,  and  which  at  the  time  are  not  made  or 
finished,  it  is  essentially  a  contract  of  sale  and  not  a  con- 
tract for  labor;  otherwise,  when  the  article  is  made  pursuant 

i  Mixer  v.  Howarth,  21  Pick.  207. 


406  STATUTE   OF   FKAUDS.  [CH.   XIV. 

to  the  agreement."1  So  in  Goddard  v.  Binney,  in  the  same 
court,  the  defendant  gave  the  plaintiff,  a  carriage-builder,  a 
verbal  order  for  a  buggy  to  be  painted  and  lined  in  a  certain 
way,  furnished  with  a  seat  of  a  certain  material,  and  marked 
with  the  defendant's  initials ;  so  far  as  the  report  shows,  no 
other  directions  were  given,  and  the  buggy  was  to  be  in  all 
other  respects  such  as  the  plaintiff  was  in  the  habit  of  mak- 
ing; the  contract  was  held  to  be  not  within  the  Statute  of 
Frauds.2 

§  306.  This  distinction  has  not  been  recognized  in  the 
courts  of  New  York,  which  have  preferred  to  abide  by  the 
rule  asserted  in  the  earlier  English  cases,  but,  as  we  have 
seen,  more  lately  repudiated;  namely,  that  if  the  goods,  etc., 
do  not  at  the  time  of  making  the  bargain  exist  in  solido,  the 
statute  cannot  apply.  Thus,  in  Sewall  v.  Fitch,  the  plaintiffs 
by  their  agent  contracted  with  the  defendants  for  a  quantity 
of  nails.  The  defendants'  clerk  (with  whom  the  bargain  was 
made)  told  him  the  quantity  was  not  then  on  hand,  but  that 
they  could  be  soon  made,  or  "  knocked  off, "  and  be  obtained 
from  the  manufactory  at  Norwich  at  the  opening  of  the  navi- 
gation. The  Supreme  Court  (per  Savage,  C.  J.)  said:  "The 
contract  in  this  case  was  for  the  delivery  of  nails  thereafter 
to  be  manufactured.  It  was,  therefore,  a  contract  for  work 
and  labor  and  materials  found,  and  so  out  of  the  statute. "  3 
Subsequently,  in  a  case  where  the  facts  were  very  similar, 
except  that  the  agreement  proved  was  in  terms  to  make  and 

1  Lamb  v.  Crafts,  12  Met.  356;  and  see  Atwater  v.  Hough,  29  Conn. 
508;  O'Neil  v.  New  York  Mining  Co.,  3  Nev.  141;  Edwards  v.  Grand 
Trunk  Railway,  54  Me.  105  ;  Finney  v.    Apgar,  31  N.  J.   L.   266.     In 
Clark  v.  Nichols,  107  Mass.  547,  a  contract  for  the  delivery  of  a  certain 
number  of  feet  of  plank,  to  he  sawed  of  various  dimensions  under  the 
purchaser's   directions,   was   held   within   the   statute.     Central  Co.    v. 
Moore,  75  Wise.  170;  Orman  v.  Hager,  3  New  Mex.  331 ;  Pratt  v.  Miller, 
109  Mo.  79  ;  Flynn  v.  Dougherty,  91  Cal.  669  ;  Fox  v.  Utter,  6  Wash. 
299;  Mighell  v.  Dougherty,  86  Iowa  480. 

2  Goddard  v.  Binney,  115  Mass.  450.     See  Meincke  v.  Falk,  55  Wise. 
427. 

«  Sewall  v.  Fitch,  8  Cow.  219. 


CH.   XIV.]  SALES   OF   GOODS,    ETC.  407 

deliver  the  articles,  the  same  court  decided  that  the  statute 
did  not  apply,  proceeding,  however,  simply  on  the  authority 
of  Sewall  v.  Fitch,  and  very  forcibly  condemning  the  doctrine 
on  which  that  case  rested.1 

§  307.  But,  reverting  to  the  distinction  between  the  cases 
where  the  articles  to  be  sold  are  to  be  made  up  in  the  ordi- 
nary course  of  the  vendor's  business,  and  those  where  they  are 
to  be  made  pursuant  to  the  purchaser's  special  order,  we  may 
on  further  examination  discover  a  broader  rule,  and  one  more 
manifestly  derived  from  the  terms  of  the  statute  itself,  on 
which  the  cases  advancing  that  distinction  may  be  naturally 
and  firmly  supported.  In  Gardner  v.  Joy,  in  the  Supreme 
Court  of  Massachusetts,  the  plaintiff  asked  the  defendant  his 
price  for  candles;  the  defendant  named  it;  the  plaintiff  said 
he  would  take  a  hundred  boxes,  and  the  defendant  said  the 
candles  were  not  manufactured,  but  he  would  manufacture 
and  deliver  them  in  the  course  of  the  summer.  Shaw,  C.  J., 
said  the  contract  was  "essentially  a  contract  of  sale.  The 
inquiry  was  for  the  price  of  cjrmlles;  the  quantity,  price,  and 
terms  of  sale  were  fixed,  and  the  mode  in  which  they  should 
be  put  up.  The  only  reference  to  the  fact  that  they  were  not 
then  made  and  ready  for  delivery  was  in  regard  to  the  time 
at  which  they  would  be  ready  for  delivery ;  and  the  fact  that 
they  were  to  be  manufactured  was  stated  as  an  indication  of 
the  time  of  delivery,  which  was  otherwise  left  uncertain."2 
Here,  although  the  agreement  was  in  terms,  as  in  Robertson 
v.  Vaughan,  to  manufacture  and  deliver  the  articles,  yet  the 
statute  was  held  to  apply;  because,  upon  all  the  circum- 
stances of  the  bargain,  it  was  clearly  no  part  of  it  that  the 

1  Robertson  v.  Vaughan,  5  Sand.  1.  In  a  late  case  in  New  York, 
where  it  was  held  that  the  statute  applied  to  a  contract  for  cider  to  be 
obtained  by  the  seller  from  farmers  and  refined  before  delivery,  the  decis- 
ion in  Garbutt  ».  Watson  was  cited  as  law.  Seymour  v.  Davis,  2  Sand- 
239.  But  see  Bronson  P.  Wiman,  10  Barb.  406.  See  also  Smith  v.  New 
York  Central  R.  R.,  4  Keyes  180;  Parsons  w.  Loucks,  48  N.  Y.  17  f 
Killmore  v.  Hewlett,  48  N.  Y.  569. 

•  Gardner  v.  Joy,  9  Met.  179. 


408  STATUTE   OF  FRAUDS.  [CH.   XIV. 

vendor  should  manufacture  them.1  On  the  other  hand,  there 
are  repeated  New  England  cases  where  a  contract  expressly 
to  manufacture  articles  out  of  materials  to  be  found  by  the 
manufacturer  has  been  held  not  affected  by  the  statute.2 

§  308.  It  would  seem  then  to  be  broadly  true  that,  if  the 
contract  is  essentially  a  contract  for  the  article,  manufactured 
or  to  be  manufactured,  the  statute  applies  to  it ;  but  if  it  is 
for  the  manufacture,  for  the  work,  labor,  and  skill  to  be 
bestowed  in  producing  the  article,  the  statute  does  not  apply. 
The  former  is  within  the  terms  of  the  seventeenth  section ; 
the  latter  is  not.  Where  the  article  contracted  for  is  not 
such  as  the  vendor  has  for  sale  in  the  ordinary  course  of  his 
business,  in  other  words,  not  with  him  an  ordinary  article  of 
traffic,  that  fact  will  go  to  show  that,  in  contracting  with  him 
for  the  production  of  it,  the  purchaser  contemplates  getting  by 
his  bargain  the  work,  labor,  and  skill  of  the  other.3  A  cir- 
cumstance from  which  the  intention  of  the  parties  that  the 
purchaser  should  get  by  the  bargain  the  work,  labor,  and  skill 
of  the  seller  may  conclusively  appear,  will  be  that  the  article, 
when  complete,  is  to  be  of  a  peculiar  kind,  suitable  only  to 
peculiar  uses,  or  perhaps  only  to  those  of  the  purchaser  him- 
self. This  point  is  dwelt  upon  with  much  force  in  an  opinion 
of  the  Superior  Court  of  Georgia,  delivered  by  Nisbet,  J., 
where  he  refers  to  Towers  v.  Osborne,  and  considers  it  as 
belonging  to  a  class  of  cases  where  articles  are  "  to  be  made 
by  the  work  and  labor,  and  with  the  material,  of  the  vendor, 
and  which,  when  made,  may  reasonably  be  presumed  to  be 
unsuited  to  the  general  market,  such  as  contracts  for  the 

1  See  also  Eichelberger  v.  M'Cauley,  5  Harr.  &  J.  (Md.)  213. 

3  Spencer  v.  Cone,  1  Met.  (Mass.)  283,  affirming  Mixer  r.  Howarth, 
21  Pick.  205;  Mattison  v.  Wescott,  13  Vt.  258;  Allen  v.  Jarvis,  20 
Conn.  38. 

8  In  Cummings  v.  Dennett,  26  Me.  401,  Whitman,  C.  J.,  said:  "  It  is 
very  clear  that,  if  application  is  made  to  a  mechanic  or  manufacturer 
[though]  for  articles  in  his  line  of  business,  and  he  undertakes  to  prepare 
and  furnish  them  in  a  given  time,  such  a  contract,  though  not  in  writing, 
is  not  affected  by  the  statute." 


CH.    XIV.]  SALES   OF   GOODS,   ETC.  409 

manufacture  of  goods  suited  alone  to  a  particular  market,  or 
for  the  painting  of  one's  own  portrait."  Of  which  contracts 
he  says:  "The  work  and  labor  and  material  constitute  the 
prime  consideration.  They  are  for  work  and  labor,  and  are, 
by  authority  and  upon  principle,  without  the  influence  of  the 
statute.  Ex  cequo  et  bono,  a  man  who  agrees  to  bestow  his 
labor  in  the  manufacture  of  goods  for  a  price,  and  which 
price  he  must  lose  unless  the  goods  are  received  by  him  who 
ordered  them,  ought  to  be  paid,  and  a  statute  which  would 
protect  the  purchaser  from  liability  in  such  a  case  would  be 
alike  impolitic  and  unjust."  Of  the  case  before  them,  which 
was  an  action  on  a  contract  for  a  crop  of  cotton,  to  be  deliv- 
ered as  soon  as  it  could  be  gathered  and  prepared  for  market, 
the  court  say:  "The  manufacturer  does  not  necessarily  lose 
the  price  of  his  labor.  If  the  purchaser  does  not  take  the 
goods,  others  will.  The  work  and  labor  bestowed  are  in  the 
line  of  his  business,  and  his  work  and  labor  would  have  been 
bestowed  in  the  production  of  such  goods  had  the  contract 
not  been  made.  The  goods  fcid  their  price  are  the  consid- 
erations of  the  contract,  and  not  the  work  and  labor  and  their 
price." l  And  so  the  Supreme  Court  of  Maine  have  held  that 
a  contract  by  which  the  defendants  bound  themselves  to  fur- 
nish as  soon  as  possible  a  quantity  of  malleable  hoe-shanks, 
according  to  patterns  left  with  them,  and  to  furnish  a  larger 
amount  if  required  at  a  diminished  price,  was  to  be  considered 
as  a  contract  for  the  manufacture  and  delivery  and  not  for  the 
mere  sale  of  the  articles,  and  so  not  within  the  statute.  The 
opinion  of  the  court  contains  the  following  important  sugges- 
tion as  to  the  distinction  between  the  two  kinds  of  contracts: 
"The  person  ordering  the  article  to  be  made  is  under  no 
obligation  to  receive  as  good  or  even  a  better  one  of  the  like 
kind  purchased  from  another  and  not  made  for  him.  It  is 
the  peculiar  skill  and  labor  of  the  other  party,  combined 
with  the  materials,  for  which  he  contracted  and  to  which 

1  Cason  v.  Cheely,  6  Ga.  554,  approving  Bird  v.  Muhlinbrink,  1  Rich. 
(S.  C.)  Law  199.     See  also  Buxton  v.  Bedall,  3  East,  303. 


410  STATUTE   OF  FRAUDS.  [CH.   XIV. 

he  is  entitled."1  A  decision  of  the  Court  of  Exchequer, 
also,  is  instructive  upon  this  point.  An  author,  by  verbal 
agreement,  employed  a  printer  to  print  a  certain  work,  and 
placed  the  manuscript  in  his  hands  for  that  purpose.  The 
printer  having  completed  the  work  (with  the  exception  of 
the  dedication,  which,  discovering  it  to  be  libellous,  he 
refused  to  print)  brought  his  action  for  what  he  had  done, 
in  the  form  of  work,  labor,  and  materials  supplied.  A  verdict 
was  obtained  for  the  plaintiff,  and  in  support  of  a  rule  to  set 
it  aside  and  enter  a  nonsuit,  the  Statute  of  Frauds  was  relied 
upon,  the  book  being  above  the  value  of  ten  pounds.  It  was 
held  that  the  form  of  the  action  was  correct,  and  that  the 
statute  did  not  apply.  Lord  Chief  Baron  Pollock  remarked 
that  the  true  rule  was,  to  consider  whether  the  essence  of  the 
contract  consisted  in  the  work  and  labor,  or  in  the  materials 
that  were  to  be  supplied;  and  his  impression  was,  that  in 
cases  of  works  of  art,  which  were  applications  of  labor  of  the 
highest  description,  the  material  was  of  no  sort  of  importance 
as  compared  with  the  labor.2 

§  308  a.  Perhaps  it  might  not  be  always  correct  to  say  that 
when  the  purchaser  could  refuse  the  goods  as  not  being  of  the 
vendor's  manufacture,  then  the  statute  would  not  apply ;  but 
the  cases  which  have  been  referred  to  seem,  upon  the  whole, 
to  establish  that  the  true  question  is,  whether  the  essential 
consideration  of  the  purchase  is  the  work  and  labor  of  the 
seller  to  be  applied  upon  his  materials,  or  the  product  itself 
as  an  article  of  trade ;  and  that  in  determining  this  question 
the  peculiarity  of  the  article  ordered,  and  the  seller's  not 

1  Hight  v.  Ripley,  19  Me.  139;  Mead  v.  Case,  33  Barb.  (N.  Y.)  202; 
Parker  v.   Scheuck,  28  Barb.   (N.  Y.)  38 ;  Abbott  v.   Gilchrist,  38  Me. 
260;  Winship  v.  Buzzard,  9  Rich.  (S.  C.)  Law  103;  Higgins  v.  Murray, 
4  Hun  (N.  Y.)  565;  Flynn  v.  Dougherty,  91  Cal.  669. 

2  Clay  v.  Yates,  1  Hurl.  &  N.  73.     The  mere  fact  that  the  particular 
article  contracted  for  is  to  be  adapted,  in  the  manufacture,  to  the  per- 
sonal use  of  the  purchaser,  as  in  the  case  of  custom-made  clothing,  etc., 
does  not,  it  seems,  prevent  the  statute  from  applying.     Lee  ».  Griffin,  1 
Best  &  S.  272  ;  per  Lord  Abinger,  in  Scott  v.  Eastern  Counties  Railway 
Co.,  12  Mees.  &  W.  33;  Rasch  v.  Bissell,  52  Mich.  455. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  411 

commonly  dealing  in  such  articles,  are  material  and  may  be 
conclusive  circumstances.  In  other  words,  while  a  contract 
for  the  sale  of  an  article  (in  whatever  state  it  is  at  the  time) 
is  within  the  seventeenth  section,  a  contract  for  the  manu- 
facture and  delivery  of  an  article  is  not;  either  expression, 
however,  as  used  by  the  parties,  being  liable  to  such  an  in- 
terpretation as  the  circumstances  of  the  transaction  show  to 
be  that  intended  by  them. 

§  309.  The  statute  9  Geo.  IV.  c.  14,  7,  commonly  called 
Lord  Tenterden's  Act,  provides  that  the  seventeenth  section 
of  the  statute  of  Charles  "shall  extend  to  all  contracts  for  the 
sale  of  goods  of  the  value  of  £10  sterling  and  upwards,  not- 
withstanding the  goods  may  be  intended  to  be  delivered  at 
some  future  time,  or  may  not  at  the  time  of  such  contract  be 
actually  made,  procured,  or  provided,  or  fit  or  ready  for 
delivery,  or  some  act  may  be  requisite  for  the  making  or 
completing  thereof,  or  rendering  the  same  fit  for  delivery." 
This  statute,  following  as  it  did  closely  upon  the  decision  of 
Garbutt  v.  Watson,  in  1822,  serlms  to  be  no  more  than  declara- 
tory of  the  prevailing  opinion  in  England  as  to  what  was  the 
construction  of  the  seventeenth  section  of  the  Statute  of 
Frauds,  touching  the  classes  of  cases  which  it  enumerated. 
In  the  case  just  referred  to,  of  the  suit  by  a  printer  for  work, 
labor,  and  materials  found  in  printing  a  book,  Lord  Chief 
Baron  Pollock  expressed  his  opinion  that  Lord  Tenterden's 
Act  applied  only  when  the  bargain  was  for  goods  afterward 
to  be  made,  and  not  for  goods  for  which  the  material  was 
found. 

§  309  a.  An  important  English  case,  involving  the  question 
of  construction  we  have  been  considering  under  the  seven- 
teenth section,  is  Lee  v.  Griffin,  in  the  Queen's  Bench,  in 
1861. l  This  was  an  action  by  a  dentist  to  recover  £21  for 
two  sets  of  teeth,  ordered  by  a  deceased  person,  whose  execu- 
tor was  the  defendant.  The  main  question  in  the  case  was 
whether  or  not  a  contract  to  make  a  set  of  artificial  teeth  was 

1  Lee  ».  Griffin,  1  Best  &  S.  272. 


412  STATUTE  OF  FRAUDS.  [CH.    XIV. 

a  contract  for  the  sale  of  goods,  wares,  and  merchandise,  and 
all  the  judges  agreed  that  it  was.  The  rule  upon  which  they 
based  their  decision  was  stated  somewhat  differently  by  the 
judges;  Crompton  and  Hill,  JJ.,  saying  that,  wherever  a 
contract  is  for  a  chattel  to  be  made  and  delivered,  it  is  a  sale 
of  goods,  and  not  a  contract  for  work  and  labor.  Blackburn, 
J.,  said:  "If  the  contract  be  such  that,  when  carried  out,  it 
will  result  in  the  sale  of  a  chattel,  the  party  cannot  sue  for 
work  and  labor ;  but  if  the  result  of  the  contract  is  that  the 
party  has  done  work  and  labor  which  ends  in  nothing  that 
can  become  the  subject  of  a  sale,  the  party  cannot  sue  for 
goods  sold  and  delivered."  The  same  learned  judge,  at  the 
close  of  his  opinion,  said :  "  I  do  not  think  that  the  test  to 
apply  to  these  cases  is,  whether  the  value  of  the  work  exceeds 
that  of  the  materials  used  in  its  execution ;  for,  if  a  sculptor 
were  employed  to  execute  a  work  of  art,  greatly  as  his  skill 
and  labor,  supposing  it  to  be  of  the  highest  description,  might 
exceed  the  value  of  the  marble  on  which  he  worked,  the  con- 
tract would  in  my  opinion,  nevertheless,  be  a  contract  for  the 
sale  of  a  chattel. "  l  This  case  goes  manifestly  to  an  extreme. 
The  declaration  of  Blackburn,  J.,  that  a  contract  for  the 
execution  of  a  work  of  art  by  a  sculptor  would,  in  his  opinion, 
be  a  contract  for  the  sale  of  a  chattel,  is  no  stronger  than 
the  actual  decision  of  the  court,  that  the  contract  before  it 
was  for  a  sale  of  a  chattel.  All  the  cases  under  this  head  of 
the  statute  have  been  cases  of  contracts  which,  when  carried 
out,  resulted  in  the  sale  of  a  chattel.  The  very  question  has 
always  been  whether,  notwithstanding  that  fact,  the  particu- 
lar contract  should  be  regarded  as  for  (not  the  resulting 
chattel,  but)  the  labor,  or  the  technical  or  artistic  skill,  of 
which  the  purchaser  was  to  receive  the  benefit.  The  case  of 
Lee  v.  Griffin,  therefore,  seems  to  reject  rather  than  to  illus- 


1  The  rule  laid  down  in  this  case  has  been  approved  by  Mr.  Benjamin, 
Law  of  Sales,  84;  Burrell  v.  Highleyman,  33  Mo.  App.  183;  Pike  Electric 
Co.  v.  Richardson  Drug  Co.,  42  Mo.  App.  272.  See  Fairbanks  v.  Richard- 
son Drug  Co  ,  42  Mo.  App.  262. 


CH.   XIV.]  SALES   OF   GOODS,   ETC.  413 

trate  this  difficult  distinction,  which  a  long  course  of  author- 
ity has  introduced  into  the  law  of  the  construction  of  the 
statute. 

§  310.  Before  passing  from  this  subject,  we  must  remark 
the  distinction  between  a  contract  to  sell  and  deliver  and  a 
contract  to  procure  and  deliver  goods,  wares,  or  merchandise. 
In  the  case  of  Cobbold  v.  Caston,  the  master  of  a  vessel  agreed 
to  carry  the  plaintiff's  corn  from  one  port  to  another,  and 
then  proceed  to  a  third  and  fetch  a  cargo  of  coals,  which  he 
would  bring  back  and  deliver  to  the  plaintiff  at  the  first  port, 
at  a  certain  price  per  chaldron.  The  Court  of  Common  Pleas 
held  that  this  was  not  a  contract  for  the  sale  of  the  coals 
within  the  meaning  of  the  seventeenth  section  of  the  statute, 
but  simply  a  contract  to  procure  and  deliver  them ;  in  illus- 
tration of  which  distinction  Gifford,  C.  J.,  remarked  that, 
if  no  coals  could  be  found  at  the  port  specified,  it  was  clear 
that  the  plaintiff  could  not  have  maintained  an  action  against 
the  defendant  for  goods  bargained  and  sold,  or  for  a  breach 
of  the  contract  in  not  delivering  them ;  that  the  contract  was 
founded  on  the  purchase  of  coals  by  the  defendant  at  a  cer- 
tain port,  but  there  was  none  whatever  that  he  would  sell 
them  to  the  plaintiff.1 

§  311.  The  last  point  to  be  considered,  in  determining 
whether  a  contract  for  the  sale  of  goods,  wares,  or  merchan- 
dise falls  within  the  provision  of  the  seventeenth  section  of 
the  statute,  is  the  price.  The  statute  declares  that  such  con- 
tracts must  be  proved  by  writing,  when  the  subject-matter  of 
them  is  of  the  price  of  ten  pounds  sterling  and  upwards ;  and 
this  limitation  as  to  the  amount  has  been  generally  adopted 
in  the  United  States.  Of  course  the  price  is  not  to  be  pre- 
sumed to  reach  this  sum ;  it  has  been  decided  in  New  York, 
and  is  according  to  manifest  reason,  that  the  defendant  who 

i  Cobbold  v.  Caston,  8  Moore,  460.  And  see  Bird  t>.  Muhlinbrink,  1 
Rich.  (S.  C.)  Law  199;  Abbott  v.  Gilchrist,  38  Me.  260;  Crockett  ». 
Scribner,  64  Me.  447;  Atwater  v.  Hough,  29  Conn.  508;  Russell  v.  Wis- 
consin R.  R.  Co.,  39  Minn.  145 ;  Frank  v.  Murphy,  7  Montana  4.  As 
to  land,  see  §§  263,  283  a,  ante. 


414  STATUTE   OF  FRAUDS.  [CH.   XIV. 

seeks  the  protection  of  the  statute  must  affirmatively  show 
that  it  does  reach  it.1  But  it  does  not  prevent  the  application 
of  the  statute,  that  the  price  of  the  goods  has  been  enhanced 
by  the  vendor's  being  bound  to  deliver  them,  there  being  no 
separate  charge  for  their  delivery.2  In  cases  where,  at  the 
time  of  making  the  bargain,  it  is  uncertain  what  the  amount 
of  the  price  to  be  paid  will  be,  there  seems  to  arise  some 
embarrassment.  In  Watts  v.  Friend  (which  has  been  already 
examined  under  another  head),  the  defendant  agreed  to  sup- 
ply the  plaintiff  with  a  quantity  of  turnip-seed,  and  the  plain- 
tiff agreed  to  sow  it  on  his  own  land,  and  sell  the  crop  of 
seed  produced  therefrom  to  the  defendant  at  XI  Is.  the  Win- 
chester bushel.  The  seed  so  produced  at  the  price  agreed 
upon  exceeded  in  value  the  sum  of  £10;  and  it  was  held  by 
the  Court  of  Queen's  Bench  (though  without  any  particular 
attention  being  paid  to  the  point  of  uncertainty  of  value) 
that  the  contract  for  the  sale  of  the  seed  was  covered  by  the 
seventeenth  section.3 

§  312.  From  this  decision  it  appears  that,  whereas  that 
clause  of  the  fourth  section  which  prohibits  bringing  an 
action  upon  any  verbal  agreement  not  to  be  performed  within 
the  space  of  a  year  from  the  making  does  not  apply  if  the 
agreement  may  by  possibility  be  so  performed,  the  seven- 
teenth section  must  be  differently  construed,  and  will  cover  a 
contract  for  articles  for  which  a  sum  exceeding  the  statutory 
limit  becomes  payable  eventually,  though  it  might  have  fallen 
within  that  limit  consistently  with  the  terms  of  the  contract. 
On  the  other  hand,  in  the  case  of  Cox  v.  Bailey,  where  the 
defence  to  an  action  upon  an  undertaking  of  indemnity  was 
that  the  amount  of  the  indemnity  might,  and  in  fact  did, 
exceed  twenty  pounds,  and  that  the  undertaking  was  there- 
fore affected  by  a  certain  statute  requiring  an  agreement 

1  Crookshank  v.  Burrell,  18  Johns.  (N.  Y.)  58. 

2  Astey  v.  Emery,  4  Maule  &  S.  262. 

8  Watts  v.  Friend,  10  Barn.  &  C.  446.  See  Bowman  v.  Conn,  8  Ind. 
58;  Brown  v.  Sanborn,  21  Minn.  402;  Carpenter  v.  Galloway,  73  Ind. 
418. 


CH.    XIV.]  SALES   OF   GOODS,   ETC.  415 

stamp  where  the  matter  of  the  agreement  was  of  the  value  of 
twenty  pounds  or  upwards,  the  Court  of  Exchequer  held  that 
statute  not  to  apply,  because  the  matter  of  the  agreement 
might  be  of  no  value  at  all.1  In  the  former  case,  it  is  true 
that  the  turnip-seed  would  surely  be  of  some  value ;  but  this 
seems  to  be  a  mere  distinction  without  a  difference.  Look- 
ing at  the  policy  of  the  statute  in  this  particular,  which  is  to 
remove  the  strong  temptation  to  perjury  in  the  proof  of  com- 
mercial transactions  of  a  certain  magnitude,  we  should  incline 
to  follow  the  authority  of  Watts  v.  Friend;  for  if  a  bargain 
may,  by  the  understanding  of  the  parties,  attain  that  magni- 
tude, it  seems  but  reasonable  that  they  should  defer  to  the 
provisions  of  the  law  and  put  their  bargain  in  writing. 

§  313.  Next,  as  to  the  meaning  of  the  word  price.  Ordina- 
rily it  means  a  consideration  stipulated  by  one  party  to  be 
paid  to  the  other ;  and  the  question  arises  whether  the  stat- 
ute shall  apply  in  any  case  where  no  price  is  expressly  agreed 
upon.  In  Hoadley  v.  McLaine  the  defendant  gave  the  plain- 
tiff an  order  for  a  landaulet  to  oe  built  for  him,  and  signed  a 
memorandum  to  that  effect,  but  without  fixing  any  price. 
Evidence  being  introduced  of  what  it  was  fairly  worth,  the 
Court  of  Common  Pleas  held  the  defendant  bound  to  pay  that 
sum,  though  it  exceeded  ten  pounds,  there  being  nothing  to 
the  contrary  in  the  memorandum.  The  case  involved  to  a 
certain  extent  the  consideration  of  Lord  Tenterden's  Act 
before  referred  to,  and  Chief  Justice  Tindal  remarked  upon 
the  substitution  in  that  act  of  the  word  value  for  the  word 
price  (which  latter  is  used  in  the  statute  of  Charles),  as  show- 
ing its  framer's  extreme  accuracy  of  mind,  and  that,  by  force 
of  that  substitution,  where  the  parties  had  omitted  to  fix  a 
price,  it  was  open  to  a  jury  to  ascertain  the  value  in  dispute.3 
From  this  it  must  be  inferred  that  the  learned  judge  was  of 
opinion  that  the  seventeenth  section  of  the  statute  of  Charles 

1  Cox  v.  Bailey,  6  Mann.  &  G.  193. 

«  Hoadley  v.  M'Laine,  10  Bing.  482;  and  see  Harman  v.  Reeve,  18 
C.  B.  587. 


416  STATUTE   OF  FRAUDS.  [CH.   XIV. 

would  not  apply  where  the  parties  had  not  fixed  a  price.  In 
the  case  before  him,  however,  it  was  only  necessary  to  decide, 
as  he  did,  that  the  memorandum  was  sufficient,  though  silent 
as  to  price,  the  jury  being  of  course  called  upon  to  determine 
the  value  of  the  article  which  the  memorandum  had  first 
shown  the  defendant  to  be  bound  to  pay  for.  And  there  is 
certainly  room  for  much  hesitation  in  accepting,  without  an 
express  judgment  upon  the  point,  the  intimation  of  the  court 
as  to  the  narrow  meaning  of  the  word  price  in  the  seventeenth 
section.  Apart  from  the  manifest  policy  of  the  statute, 
which,  as  we  have  before  remarked,  is  to  prevent  the  fraud- 
ulent assertion  of  commercial  bargains  of  a  certain  mag- 
nitude, it  is  no  straining  of  words  to  say  that,  where  parties 
make  no  stipulation  as  to  the  amount  to  be  paid  for  goods, 
wares,  or  merchandise  bought  and  sold,  and  thus  agree  tacitly 
upon  the  quantum  valet,  they  do  contract  for  a  fair  price, 
which  is  capable  of  being  ascertained  by  proof,  and  thus  their 
bargain  is  brought  within  the  reach  of  the  statute,  where 
that  price  is  shown  to  exceed  the  amount  therein  fixed. 

§  314.  When  a  purchaser  buys  a  number  of  articles  at  one 
transaction,  and  the  aggregate  price  exceeds  the  statutory 
limit,  the  seventeenth  section  will  be  held  to  apply  to  the 
bargain.  The  mere  fact  that  a  separate  price  is  agreed  upon 
for  each  article,  or  even  that  each  article  is  laid  aside  as 
purchased,  makes  no  difference  so  long  as  the  different  pur- 
chases are  so  connected  in  time  or  place,  or  in  the  conduct  of 
the  parties,  that  the  whole  may  be  fairly  considered  one  entire 
transaction.1 

1  Baldey  v  Parker,  2  Barn.  &  C.  37.  See  the  authorities  cited  to  the 
corresponding  point  under  the  head  of  acceptance  and  receipt.  Post, 
Chap.  XV  §  335;  also  Gilman  v.  Hill,  36  N.  H.  311;  Jenness  v.  Wen- 
dell, 51  N.  H.  63 ;  Allard  v.  Greasert,  61  N.  Y.  1.  But  see  Roots  ». 
Dormer,  4  Barn.  &  Ad.  77. 


CH.    XV.]  ACCEPTANCE    AND    RECEIPT.  417 


CHAPTER   XV. 

ACCEPTANCE   AND   RECEIPT. 

§  315.  IT  has  been  repeatedly  observed  that  the  primary 
intention  of  the  framers  of  the  seventeenth  section  of  the 
statute  was,  that  contracts  for  the  sale  of  goods,  wares,  and 
merchandise  should  be  put  in  writing,  although  other  modes  of 
establishing  the  contract  are  allowed  by  it.1  And  this  view  is 
confirmed  by  the  fact  that  the  other  section  relating  to  con- 
tracts —  the  fourth  section  —  provides  only  for  the  memo- 
randum in  writing,  allowing  no  equivalent.  And  while,  as 
if  in  deference  to  the  exigencies  of  trade,  incessant  and  sud- 
den as  they  must  be,  the  legislature  saw  fit,  in  the  seventeenth 
section,  so  far  to  modify  the  stricter  rule,  it  is  quite  clear 
that  they  intended  thereby  no  departure  from  the  spirit  of  the 
statute ;  but  that  the  alternative  evidence  was  meant  to  be  of 
such  a  nature  as  to  constitute,  of  itself,  and  in  the  absence  of 
writing,  a  sufficient  safeguard  against  perjury,  by  requiring 
proof  of  such  conduct  on  the  part  of  either  party  as  involved 
an  open  and  public  recognition  of  a  contract  of  sale. 

§  316.  This  recognition  of  the  contract,  as  the  statute  pro- 
vides, is  to  be  shown  by  proof  of  the  conduct  of  the  parties 
with  regard  to  the  goods  which  are  the  alleged  subject  of  sale, 
or  by  proof  of  payment  of  a  part  of  the  price.  In  the  pres- 
ent chapter  we  have  to  deal  only  with  the  former  provision, 
i.  «.,  that  no  contract  shall  be  allowed  to  be  good  "except  the 
buyer  shall  accept  a  part  of  the  goods  so  sold,2  and  actually 

i  Per  Penman,  C.  .T.,  in  Bushel  v.   Wheeler,  15  Q   B.  442,  in  notia. 
Per  Bayley,  .1.,  in  Smith  v   Surman,  9  Barn.  &  C.  569. 
3  See  Davis  v.  Eastman,  i  Allen  (Mass.)  422. 

27 


418  STATUTE   OF   FRAUDS.  [CH.   XV. 

receive  the  same."  This  provision,  it  will  be  seen,  names 
only  the  buyer,  and  the  same  is  true  of  that  concerning  pay- 
ment; yet  it  has  never  been  questioned  that  the  provisions  of 
the  statute  apply,  whether  the  buyer  or  the  seller  be  the  party 
to  be  charged,  and  the  courts  have  almost  uniformly  regarded 
the  provision  which  in  terms  concerns  the  receipt  by  the  buyer, 
as  covering,  by  implication,  the  complementary  and  contem- 
porary act  of  delivery  by  the  seller. 

§  316  a.  Before  proceeding  further,  it  is  essential  to  notice 
the  distinct  nature  of  the  acceptance  and  the  receipt  for 
which  the  statute  provides.  It  is  very  clearly  stated  by  an 
eminent  writer  on  this  subject.  Speaking  of  the  part  of  the 
seventeenth  section  now  under  discussion,  he  says :  "  If  we 
seek  for  the  meaning  of  the  enactment,  judging  merely  from  its 
words,  and  without  reference  to  decisions,  it  seems  that  this 
provision  is  not  complied  with  unless  the  two  things  concur; 
the  buyer  must  accept,  and  he  must  actually  receive  part  of 
the  goods ;  and  the  contract  will  not  be  good  unless  he  does 
both. 1  And  this  is  to  be  borne  in  mind,  for  as  there  may  be 
an  actual  receipt  without  any  acceptance,  so  there  may  be  an 
acceptance  without  any  receipt."  2  This  view  of  the  statute 
was  at  the  time  (1845),  as  the  writer  says,  somewhat  "in 
the  absence  of  authority ;  "  but  the  more  recent  and  weighty 
decisions,  both  in  England  and  in  this  country,  have  clearly 
recognized  it.3  In  the  earlier  cases,  the  terms  "acceptance," 

1  In  the  case  of  Goddard  v   Binney,  115  Mass.  450,  the  Supreme  Court 
of  Massachusetts  held  that  enough  had  been  done  to  vest  the  general  own- 
ership of  the  goods  in  the  buyer,  and  to  cast  upon  him  the  risk  of  loss  by 
fire  while  the  goods  remained  in  the  seller's  possession,  and  to  support  an 
action  by  the  seller  against  the  buyer  for  the  contract  price,  although  the 
circumstances  of  the  case  might  not  show  "  delivery  and  acceptance  with- 
in the  Statute  of  Frauds." 

2  Blackburn  on  Sales,  22,  23. 

8  Hunt  v.  Hecht,  8  Exch.  814;  Cusack  v.  Robinson,  1  Best  &  S.  299; 
Knight  P.  Mann,  118  Mass.  143;  Hewes  ».  Jordan,  39  Md.  472;  Wilcox 
Silver  Plate  Co.  r.  Green,  72  N.  Y.  18 ;  Heermance  v.  Taylor,  14  Hun 
(N.  Y.)  149.  See  Benjamin  on  Sales,  Ch.  IV.  §  1 :  Langdell,  Select  Cases 
on  Sales,  1021;  Simpson  v.  Krumdick,  28  Minn.  352;  Billin  p.  Henkel, 
9  Col.  394;  Powder  River  Live  Stock  Co.  r.  Lamb,  38  Neb.  339. 


CH.  XV.]  ACCEPTANCE   AND   RECEIPT.  419 

"receipt,"  and  "delivery"  were  often  used  as  if  synonymous 
and  interchangeable;  and  this  makes  it  necessary,  at  the 
present  day,  to  notice  carefully  the  exact  sense  in  which  they 
are  used  in  those  cases,  when  they  may  be  cited  as  authority 
upon  questions  concerning  "acceptance"  or  "receipt,"  as 
those  terms  are  applied  with  greater  strictness  in  the  more 
modern  decisions.1 

§  316  b.  To  constitute  acceptance,  there  must  be  such  con- 
duct of  the  buyer  in  respect  to  the  goods  as  affords  evidence 
that  he  has  identified  and  recognized  them  as  the  goods  which 
were  to  be  his  by  virtue  of  the  alleged  contract.  The  burden 
of  showing  this  will  obviously  fall  upon  the  buyer  or  the 
seller,  accordingly  as  the  one  or  the  other  of  them  is  defend- 
ant in  the  action,2  but  the  fact  itself  is  the  same  in  either 
case,  and  it  is  also  a  question  of  what  the  buyer  only  has 
done.8  Again,  it  is  a  fact  that  ordinarily  can  be  proved  by 
oral  evidence  only ;  evidence  of  what  the  buyer  has  done  or 
said,  or  refrained  from  doing  or  saying.  But  it  will  readily 
be  seen  that,  by  imposing  upon  the  party  suing  on  the  con- 
tract the  necessity  of  proving  not  only  that  the  contract  was 
made,  but  that  it  was  also  ratified  by  the  other  party  by  con- 
duct such  as  has  been  above  described,  the  framers  of  the 
Statute  of  Frauds  placed  a  substantial  obstacle  in  the  way  of 
the  false  swearing  which  it  was  their  object  to  prevent. 


i  The  term  "  delivery,"  which  does  not  occur  in  the  statute  at  all,  has 
been  often  loosely  used  to  denote  acceptance  or  receipt  alone,  or  a  mixture 
of  the  two.  See,  for  illustration  of  this,  Searle  v.  Keeves,  2  Esp.  598,  per 
Eyre,  C.  J.;  Norman  v.  Phillips,  14  Mees.  &  W.  277,  per  Alderson,  B. 
In  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680,  Holroyd,  J.,  in  his  opin- 
ion, speaks  constantly  of  "acceptance,"  although  in  reality  deciding,  and 
intending  to  decide,  a  question  of  "  receipt  "  involving  the  custody  or 
possession  of  the  chattel,  and  the  existence  of  the  seller's  lien ;  and  see 
Wright  v.  Percival,  8  L.  J.  Q.  B.  (N.  B.)  258;  Terney  v.  Doten,  70  Cal. 
399.  That  no  acceptance,  as  distinguished  from  delivery,  is  required 
under  a  statute  of  frauds  which  specifies  delivery  only,  see  Bullock  v. 
Tschergi,  13  Fed.  Rep.  345. 

*  Reniick  P.  Sandford,  120  Mass.  309,  316. 

*  See  Knight  v.  Mann,  118  Mass.  143. 


420  STATUTE   OF  FRAUDS.  [CH.   XV. 

§  816  c.  The  definition  above  given  of  acceptance  points  to 
a  connection  existing  between  it  and  the  passage  of  the  title 
to  the  goods,  which,  as  will  be  hereafter  seen,  finds  its  coun- 
terpart in  a  similar  connection  between  the  receipt  and  the 
right  of  possession.1  Thus  it  is  now  pretty  well  settled  that 
when,  at  the  time  of  making  the  sale,  the  thing  sold  is  definite 
and  specific,  and  nothing  remains  to  be  done  in  the  way  of 
preparation,  or  selection  from  a  mass,  the  same  evidence  that 
would  prove  the  making  of  the  sale  whereby  the  title  would 
pass  will  ordinarily  be  sufficient  to  show  an  acceptance  by 
the  buyer  such  as  would  satisfy  the  statute.  But  if,  at  the 
time,  the  thing  to  be  sold  and  bought  is  not  defined,  or  is 
yet  to  be  completed,  or  to  be  selected  from  a  larger  lot,  or 
to  be  compared  with  a  sample  shown,  there  is  as  yet  no 
acceptance,  nor  will  there  be  till  the  selection  or  the  com- 
parison has  been  made  and  consented  to  by  the  buyer.2  This 
was  clearly  brought  out  in  the  opinion  of  the  Court  of  Queen's 
Bench,  delivered  by  Blackburn,  J.,  A.D.  1861,  in  the  case  of 
Cusack  v.  Robinson.  In  that  case,  the  defendant  called  at 
the  plaintiff's  warehouse,  and  examined  a  certain  lot  of 
butter,  and  later  in  the  day  made  a  verbal  agreement  to  pur- 
chase it  at  a  specified  price,  and  left  orders  to  have  it  deliv- 
ered at  a  designated  place.  The  butter  was  accordingly 
delivered  as  directed,  but  the  defendant  declined  to  keep  it, 
or  to  pay  for  it.  There  was  a  verdict  for  plaintiff,  with 
leave  to  defendant  to  move  for  a  nonsuit,  if  the  full  court 
should  be  of  opinion  that  the  facts  failed  to  show  an  accept- 
ance and  receipt.  Leave  was  refused.  In  the  argument  of 
counsel  for  defendant  the  case  of  Nicholson  v.  Bower  was 
cited,  but  the  court  distinguished  it  on  the  ground  that  the 
contract  there  was  not  originally  a,  sale  of  specific  wheat, 
and  that  the  vendees  had  never  agreed  to  take  the  particular 
bushels  of  wheat  which  they  had  received ;  in  other  words, 

1  See  Townsend  v.  Hargraves,  118  Mass.  325,  333. 
'2  See  Brewster  v.  Taylor,  63  N.  Y.  587;  Fitzsimmons  v.  Woodruff,  1 
Thomp.  &  C.  (N.  Y.)  3. 


CH.    XV.]  ACCEPTANCE   AND   RECEIPT.  421 

that,  the  goods  not  being  specified  at  the  time  of  the  contract, 
the  buyer  had  not  had  even  the  opportunity  of  accepting  the 
goods,  that  is,  of  acknowledging  them  as  the  goods  to  be  his 
under  the  contract;  whereas,  in  the  case  before  the  court, 
the  goods  being  a  specific  lot,  it  was  clear  that  the  acceptance 
was  complete  when  the  bargain  was  made.1  From  this  it 
follows,  generally,  that  in  the  case  of  goods  not  specified  at 
the  time  of  the  contract,  although  they  be  subsequently 
selected  and  even  delivered  to  the  buyer,  this  is  not  of  itself 
evidence  of  an  acceptance ;  indeed,  as  is  often  the  case,  they 
may  have  been  delivered  to  the  buyer  for  the  very  purpose  of 
enabling  him  to  say  whether  he  will  accept  them  or  not.2 

§  316  d.  A  further  illustration  of  this  general  doctrine  is 
to  be  found  in  cases  like  that  of  Maberley  v.  Sheppard,3 
which  arose  upon  a  contract  for  the  manufacture  and  sale  of 
a  wagon.  The  defendant,  who  had  ordered  the  wagon,  had 
procured  a  third  person  to  put  upon  it  the  iron  work  and  a 
tilt,  while  it  was  still  in  the  plaintiff's  yard  unfinished. 
The  Court  of  Common  Pleas  held,  in  view  of  the  fact  that 
this  wagon  was  unfinished  when  the  acts  relied  on  as  consti- 
tuting acceptance  were  done,  that  they  were  not  evidence  of 
acceptance  within  the  statute;  admitting,  however,  that  if, 
after  the  wagon  was  completed  and  ready  for  delivery,  the 
defendant  had  sent  a  workman  of  his  own  to  perform  addi- 
tional work  upon  it,  such  conduct,  as  being  an  admission  of 
ownership,  might  have  amounted  to  an  acceptance.4  Again, 
in  the  case  of  Hunt  v.  Hecht,6  where  defendant  agreed  to  buy 
a  certain  quantity  of  bones  of  particular  kinds,  to  be  picked 
out  from  a  larger  heap,  put  up  in  bags  furnished  by  the  buyer, 
and  then  sent  to  a  designated  warehouse,  all  of  which  was 

1  Cusack  ».  Robinson,  1  Best  &  S.  299;  and  see  Cross  v.  O'Donnell, 
44  N.  Y.  661. 

2  See  Knight  v.  Mann,  118  Mass.  143;  Stone  v.  Browning,  68  N.  Y. 
598;  Simpson  v.  Krumdick,  28  Minn.  352. 

Maberley  v.  Sheppard,  10  Bing.  99. 
4  See  Brewster  v.  Taylor,  63  N.  Y.  587. 
6  Hunt  r.  Hecht,  8  Exch.  814. 


422  STATUTE    OF   FRAUDS.  [CH.  XV. 

done ;  but  when  the  defendant  came  to  inspect  the  bones,  he 
found  they  were  not  what  he  had  ordered,  and  so  declined  to 
keep  them ;  the  court  held  that  the  evidence  showed  receipt, 
but  not  acceptance,  and  the  grounds  for  the  decision  are  thus 
put  by  Alderson,  B.  :  "  If  a  person  agrees  to  buy  a  quantity 
of  goods  to  be  taken  from  the  bulk,  he  does  not  purchase  the 
particular  part  bargained  for  until  it  is  separated  from  the 
rest ;  and  he  cannot  be  said  to  accept  that  which  he  knows 
nothing  of,  otherwise  it  would  make  him  the  acceptor  of 
whatever  the  vendor  chooses  to  send  him ;  whereas  he  has  a 
right  to  see  whether,  in  his  judgment,  the  goods  sent  corre- 
spond with  the  order.  The  statute  requires  an  acceptance 
and  actual  receipt  of  the  goods;  here  there  has  been  a 
delivery,  but  no  acceptance. "  l 

§  316  e.  That  there  has  been  no  acceptance  may  also  appear 
when  it  is  proved  that  the  purchaser,  after  receipt  of  the 
goods,  refuses  to  examine  them.  In  Nicholson  v.  Bower,2  the 
buyer  of  certain  goods  by  sample,  being  bankrupt  at  the  time 
of  their  delivery,  declined  to  compare  them  with  the  sample, 
as  he  did  not  desire,  in  the  condition  of  his  affairs,  to  insist 
upon  the  contract,  but  wished  to  repudiate  it.3 

§  316  /.  After  the  buyer  has  come  into  possession  of  the 
goods,  his  acceptance  of  them  may  be  found  from  the  fact  of 
his  subsequently  so  dealing  with  them  as  to  involve  an  admis- 
sion that  they  are  the  goods  bought  by  him.  Upon  this  point 
the  leading  case  is  Morton  v.  Tibbett,4  which  may  be  said  to 
have  decided  that  when  the  purchaser  of  goods  takes  upon 
himself  to  exercise  a  dominion  over  them,  and  deals  with 


1  See  also  Gorham  v.  Fisher,  30  Vt.  428 ;  Atherton  v.  Newhall,  123 
Mass.  141;  Knight  v.  Mann,  118  Mass.  143;  Fitzsimmons  v.  Woodruff, 
1  Thomp.  &  C.  (N.  Y.)  3. 

3  Nicholson  v.  Bower,  1  El.  &  E.  172. 

8  And  see  Remick  v.  Sand  ford,  120  Mass.  309  ;  Stone  0.  Browning,  68 
X.  Y.  598 ;  Bacon  v.  Eccles,  43  Wise.  227. 

4  Morton  v.  Tibbett,  15  Q.  B.  428.    See  commentary  upon  it  of  Alder- 
son,  B.,  i:i  Hunt  v.  Hecht,  8  Exch.  814.     See  also  Meyer  v.  Thompson, 
19  Oregon  194. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  423 

them  in  a  manner  inconsistent  with  the  right  of  property  or 
the  title  being  in  the  vendors,  that  is  evidence  to  justify  the 
jury  in  finding  that  the  vendee  has  accepted  the  goods.  The 
same  rule  was  applied  in  the  case  of  Currie  v.  Anderson,  the 
court  being  of  opinion  that  inasmuch  as  the  buyer  had  desig- 
nated as  the  place  of  delivery  a  particular  ship,  and,  after 
the  goods  were  delivered  there,  had  also  given  directions  to 
have  the  bill  of  lading  made  out  in  a  particular  manner,  there 
was  ample  evidence  that  he  had  dealt  with  the  goods  as 
owner,  and  consequently  had  accepted  them.1 

§  316  g.  Again,  after  the  buyer  has  come  into  the  posses- 
sion of  the  goods,  his  acceptance  of  them  may  be  inferred 
from  his  continued  and  unexplained  retention  of  them,  though 
no  affirmative  act  of  acceptance  or  identification  appear. 
Thus,  in  Coleman  v.  Gibson,  the  contract  was  for  the  pur- 
chase of  five  distiller's  vats,  to  be  made  for  the  buyer.  Four 
of  the  vats  had  been  made  and  delivered,  the  deliveries  being 
a  few  days  apart,  when  the  buyer  went  to  the  maker  and 
refused  to  keep  the  vats  already  made,  on  the  ground  that 
they  were  worthless,  or  to  take  the  one  which  was  to  be 
made,  and  the  fifth  vat  accordingly  was  not  delivered.  Lord 
Tenterden,  who  decided  the  case,  held  that  it  was  a  question 
for  the  jury  whether  the  defendant  had  within  a  reasonable 
time  signified  to  the  plaintiff  his  objection  to  the  goods,  as 
not  satisfying  the  contract;  and  that  if  he  had  not  done  so, 
he  should  be  taken  to  have  accepted  them.2  The  same  prin- 
ciple was  applied  in  the  case  of  Bushel  v.  Wheeler,  where  the 
goods  were  delivered  at  the  place  designated  by  the  buyer, 
who  afterward  for  five  months  failed  to  inform  the  seller 
whether  or  not  they  corresponded  to  the  order;  and  this  was 
held  evidence  to  go  to  the  jury  on  the  question  of  accept- 


1  Currie  ».  Anderson,  2  El.  &  E.  502 ;  and  see  Castle  v.  Sworder,  6 
Hurlst.  &  X.  828,  on  appeal,  opinion  of  Crompton,  J. ;  also  Page  v. 
Morgan,  L.  R.  15  Q.  B.  D.  228. 

a  Coleman  v.  Gibson,  1  Moo.  &  R.  1G8.  See  Laner  r.  Richmond  Insti- 
tution, 8  Utah  305;  Small  v.  Stevens,  60  N.  H.  209. 


424  STATUTE   OF   FRAUDS.  [CH.  XV. 

ance.1  In  Norman  v.  Phillips,  in  the  Exchequer,  the  follow- 
ing year,  where,  under  nearly  similar  circumstances,  a  month 
had  elapsed  before  the  buyer  notified  the  seller,  the  judge 
below  had  directed  a  verdict  for  the  plaintiff,  and  the  full 
bench  made  a  rule  absolute  for  a  nonsuit ;  it  was  admitted 
that  there  was  some  evidence  of  acceptance  that  should  have 
gone  to  the  jury,  but  as,  in  the  opinion  of  the  court,  it  was 
not  enough  by  itself  to  warrant  a  finding  of  an  acceptance,  a 
new  trial  was  not  ordered.2 

§  316  h.  In  this  last  case  the  doctrine  of  a  constructive 
acceptance  by  the  buyer's  inaction  after  taking  the  goods 
into  his  possession  received  but  a  grudging  assent;  yet  the 
doctrine,  it  seems,  ought  to  stand  as  law.  The  law  may  well 
say  that  the  buyer,  by  his  silence  for  an  unreasonable  time, 
must  be  taken  to  have  said  to  the  seller,  "  I  accept  the  goods ; " 
and  that  this  shall  not  be  allowed  to  be  controverted  by  the 
buyer  afterward.  But  inasmuch  as  the  question  in  all  such 
cases  turns  upon  the  inference  to  be  drawn  from  the  facts,  it 
is  clear  that  the  facts  which  tend  to  negative  the  inference 
should  be  regarded,  as  well  as  those  which  may  support  it, 
In  the  case  of  Curtis  v.  Pugh  the  buyer  had  ordered  three 
casks  of  "Cox's  Best  Glue,"  and  when  the  casks  arrived  he 
took  out  the  contents  and  stored  them  in  bags,  for  the  pur- 
pose, as  he  alleged,  of  examination;  and  not  finding  them  to 
correspond  with  the  order,  he  repacked  them,  and  sent  them 
back  to  the  seller,  who  declined  to  receive  them.  It  appeared 
that  a  sufficiently  thorough  examination  might  have  been 
made  without  entirely  unpacking  the  glue,  and  also  that  re- 
packing would,  to  some  extent,  injure  it.  The  judge  at  nisi 
prius  had  ruled,  that  if  the  defendant  had  done  any  act  alter- 
ing the  condition  of  the  goods,  that  would  prove  an  accept- 
ance ;  but  the  verdict  for  the  plaintiff  was  set  aside,  the  court 
being  of  the  opinion  that  what  was  done  was  not  inconsistent 

1  Bushel  v.  Wheeler,  15  Q,  B.  442,  note;  and  see  Wilcox  Silver  Plate 
Co.  v.  Green,  72  N.  Y.  18. 

8  Norman  v.  Phillips,  14  Mees.  &  W.  277. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  425 

with  ail  examination  merely  for  the  purpose  of  ascertaining 
whether  or  not  the  goods  answered  the  orders. l  The  same 
doctrine  was  applied  in  the  case  of  Parker  v.  Wallis,  where 
the  buyer  of  certain  turnip-seed  had  taken  it  out  of  the  sacks 
and  spread  it  out  thin.  It  was  held  that,  under  all  the  cir- 
cumstances, the  jury  would  be  justified  in  finding  that  the 
handling  had  not  been  done  as  an  act  of  ownership.2 

§  316  i.  The  same  principles  apply  to  those  cases  where 
the  acts  relied  on  to  show  acceptance  are  the  dealings  of  the 
buyer  with  the  bill  of  lading,  or  other  indicium  of  right  to 
possession.  The  mere  fact  that  such  a  document  was  sent  by 
the  buyer  and  received  by  the  seller  manifestly  affords  no 
ground  for  inferring  an  acceptance  by  the  latter  of  the  goods 
to  which  it  refers.8 

§  317.  But  in  addition  to  the  acceptance,  the  buyer  must 
have  received,  and  consequently  the  seller  delivered,  the  goods 
sold,  or  a  part  of  them.  This  again  is  a  question  of  fact,  and 
in  deciding  it,  the  conduct  of  the  seller  as  well  as  the  buyer 
must,  it  is  obvious,  be  considered.  Thus  it  is  a  well-known 
rule,  and  one  established  by  a  series  of  most  respectable 
decisions,  that,  so  long  as  the  seller  has  not  so  acted  toward 
the  goods  as  to  divest  himself  of  his  lien  upon  them  for  the 
price,  there  has  been  no  receipt  under  the  statute.  Under  this 
rule,  it  will  be  seen,  the  conduct  of  the  seller  is  the  chief 
thing  to  be  considered.4  And  as  the  idea  of  a  lien  of  the 
vendor  presupposes  the  passage  of  the  title  out  of  him,  —  for 
a  man  cannot  be  said  to  have  a  lien  on  his  own  goods,  —  it 
will  be  seen  that,  while  in  the  case  of  acceptance  we  regard 
the  title,  so,  in  the  case  of  receipt,  we  must  regard  the  pos- 
session, and  notice  in  whom,  either  actually  or  constructively, 

1  Curtis  v.  Pugh,  10  Q.  B.  11. 

3  Parker  v.  Wallis,  5  El.  &  B.  21.     And  see  Reraick  v.  Sandford,  120 
Mass.  309. 

8  See  Quintard  v.  Bacon,  99  Mass.  185 ;  Farina  v.  Home,  16  Mees.  & 
W.  119. 

4  See  Mechanics  &  Traders'  Bk.  v.  Farmers  &  Mechanics'  Nat 
60  N.  Y.  40. 


426  STATUTE   OF   FRAUDS.  [CH.   XV. 

it  is.1  And  it  is  generally  true  that,  to  constitute  the  receipt 
required  by  the  statute,  there  must  be  shown  a  transfer  of  the 
possession  of  the  goods  by  and  from  the  seller  to  the  buyer, 
either  actually  by  manual  delivery,  symbolically  by  some 
substituted  delivery,  or  constructively  by  a  change  in  the 
nature  of  the  seller's  subsequent  holding. 

§  317  a.  Where,  by  the  terms  of  the  contract,  the  sale  is 
to  be  for  cash,  or  any  other  condition  precedent  to  the  buyer's 
acquiring  title  in  the  goods  be  imposed,  or  the  goods  be,  at 
the  time  of  the  alleged  receipt,  not  fitted  for  delivery  accord- 
ing to  the  contract,  or  anything  remain  to  be  done  by  the 
seller  to  perfect  the  delivery,  such  fact  will  be  generally  con- 
clusive that  there  was  no  receipt  by  the  buyer.  There  must 
be  first  a  delivery  by  the  seller,  with  intent  to  give  possession 
of  the  goods  to  the  buyer.2  If,  however,  the  buyer  has  taken 
possession,  and  merely  remains  under  an  engagement  restrict- 
ing his  use  or  disposition  of  the  goods  until  payment  of  the 
price,  that  restriction  will  not,  it  seems,  be  deemed  incon- 
sistent with  his  having  received  them  so  as  to  conclude  the 
contract.  In  a  case  in  the  Queen's  Bench,  the  buyer  of  some 
wool  had  it  removed  to  a  warehouse  belonging  to  a  third 
party,  but  where  he  was  in  the  habit  of  collecting  his  vari- 
ous purchases  of  wools  and  having  them  packed,  and  there  he 
had  the  wool  in  question  weighed  and  packed  in  his  own 
sheetings,  but  by  the  course  of  dealing  he  was  not  to  remove 
it  till  the  price  was  paid ;  it  was  held  that  there  was  a  suffi- 
cient receipt.  After  remarking  that  everything  was  com- 
plete but  the  payment  of  the  price,  Lord  Denman,  C.  J., 
who  delivered  the  opinion  of  the  court,  says:  "We  think 
that,  upon  this  evidence,  the  place  to  which  the  wools  were 
removed  must  be  considered  as  the  defendant's  warehouse, 
and  that  he  was  in  actual  possession  of  it  there  as  soon  as  it 
was  weighed  and  packed ;  that  it  was  thenceforward  at  his 
risk,  and  if  burnt  must  have  been  paid  for  by  him.  Consist- 

1  Rodgers  v.  Jones,  129  Mass.  420. 
3  Hirichman  r.  Lincoln,  124  U.  S.  38. 


CH.   XV.]  ACCEPTANCE   AND  RECEIPT.  427 

ently  with  this,  however,  the  plaintiff  had,  not  what  is  com- 
muuly  called  a  lien,  determinate  on  the  loss  of  possession, 
but  a  special  interest,  sometimes,  but  improperly,  called  a 
lien,  growing  out  of  his  original  ownership,  independent  of 
the  actual  possession,  and  consistent  with  the  property  being 
in  the  defendant.  This  he  retained  in  respect  of  the  term 
agreed  on,  that  the  goods  should  not  be  removed  to  their 
ultimate  place  of  destination  before  payment."  1  In  a  later 
case,  where  the  defendant  had  bargained  for  a  carriage  from 
the  plaintiff,  and  after  leaving  it  for  a  few  days  in  the  plain- 
tiff's shop  took  it  out  for  a  drive,  paying  for  the  horse  and 
man,  it  was  held  by  the  Court  of  Exchequer  that  there  was  a 
receipt  of  the  carriage,  and  Maule,  J.,  remarked  that,  "as- 
suming that  the  man  who  drove  it  was  the  plaintiff's  servant, 
and  had  directions  from  the  plaintiff  to  bring  back  tne  car- 
riage, still  that  which  passed  clearly  amounted  to  an  accept- 
ance [receipt]  subject  to  a  contract  on  the  defendant's  part  to 
send  the  carriage  back  to  the  plaintiff  and  repledge  it  for  the 
price."2  Mere  retention  of  possession  by  the  vendor  after 
the  property  of  the  goods  has  passed,  and  for  the  purpose  of 
performing  some  duty  in  regard  to  them  as  the  agent  of  the 
purchaser  and  owner,  of  course  docs  not  invalidate  the  bar- 
gain of  the  parties.8 

§  318.  The  actual  receipt  of  the  goods  does  not  necessarily 
involve  manual  taking  possession  of  them  by  the  buyer.  In 
many  cases  this  would  be  impracticable,  and  no  other  receipt 
is  required  than  such  as  is  consistent  with  the  nature,  locality, 
and  condition  of  the  goods ;  though  this  be  merely  symboli- 
cal, the  statute  will  be  satisfied  when  the  case  admits  of  none 
other.  It  is,  therefore,  a  general  rule  in  regard  to  the  actual 
receipt  of  inaccessible,  or  ponderous,  or  bulky  articles,  that 
it  may  be  accomplished  by  the  performance  of  any  act  which 
shows  that  the  seller  has  parted  with  the  right  to  control  the 

1  Dodsley  v.  Varley,  12  Ad.  &  E.  634. 

2  Beaumont  v.  Brengeri,  5  C.  B.  308. 
•  Boynton  v.  Veazie,  24  Me.  286. 


428  STATUTE   OF  FRAUDS.  [CH.    XV. 

property,  and  that  the  purchaser  has  acquired  that  right. 
Thus  goods  lodged  in  a  warehouse  may  be  transferred  sym- 
bolically by  the  delivery  of  the  key.1 

§  318  a.  There  remains  to  be  considered  the  third  form  of 
delivery  and  receipt,  often  spoken  of  as  "constructive," 
where,  without  actual  transfer  of  the  goods  or  their  symbol, 
the  conduct  of  the  parties  is  such  as  to  be  inconsistent  with 
any  other  supposition  than  that  there  has  been  a  change  in 
the  nature  of  the  holding;  that  the  seller,  or  his  bailee,  now 
holds  as  the  bailee  of  the  buyer,  or  that  the  buyer  himself, 
who  formerly  had  goods  of  the  seller  in  his  own  possession 
as  bailee,  is  now  permitted  by  the  latter  to  deal  with  them 
as  owner.  Whether  such  a  change  has  taken  place  is  a 
question  for  the  jury  on  the  evidence. 

§  318  b.  Where  the  seller's  goods  remain  in  his  possession 
after  the  sale,  the  change  in  the  nature  of  his  holding  is  often 
to  be  inferred  from  his  subsequent  conduct  toward  them,  as 
showing  that,  though  still  in  his  hands,  they  are  no  longer 
under  his  own  control,  but  that  he  holds  as  the  bailee  or 
agent  of  the  buyer,  and  subject  to  his  order.  Upon  this  point 
the  case  of  Elmore  v.  Stone  is  instructive,  as  being  a  decision 
which,  though  somewhat  criticised  as  to  the  application  of 
the  rule  to  its  particular  facts,  has  been  abundantly  affirmed 
by  subsequent  decisions  as  recognizing  the  true  rule.  It  was 
an  action  to  recover  the  price  of  two  horses  alleged  to  have 
been  sold  to  the  defendant,  who,  as  it  appeared  in  evidence, 
after  concluding  the  bargain  verbally,  sent  word  that  "  the 
horses  were  his,  but  that,  as  he  had  neither  servant  nor  sta- 
ble, the  plaintiff  must  keep  them  at  livery  for  him. "  Accord- 
ingly the  plaintiff  removed  the  horses  from  his  sale-stable  to 
another,  where,  it  was  testified,  they  thereafter  stood  at 
livery.  Upon  this  evidence,  the  jury  found  that  there  had 
been  constructively  a  receipt  of  the  horses,  and  Lord  Mans- 
field supported  the  verdict,  on  the  ground  that  there  was  evi- 

1  Wilkes  v.  Ferris,  5  Johns.  (X.  Y.)  335;  Chappel  v.  Marvin,  2  Aik. 
(Vt.)  79. 


CH.  XV.]         ACCEPTANCE  AND  RECEIPT.  429 

dence  that  the  seller  had  consented  to  keep,  and  had  kept, 
the  horses  in  the  character  of  a  livery -stable  keeper;  and 
that,  if  the  jury  believed  the  evidence,  they  were  justified  in 
finding  a  change  in  the  posesssion,  and  consequently  a  con- 
structive receipt.1 

§  319.  The  same  doctrine  applies  where  the  property  is  not 
in  the  manual  possession  either  of  the  seller  or  his  bailee,  but 
is  upon  the  premises  of  some  third  person,  though  subject  to 
the  control  of  the  seller.  Here  again  the  evidence  may  afford 
sufficient  ground  for  a  finding  that  the  possession  and  control 
have  been  transferred  constructively,  if  not  actually,  to  the 
buyer.2  In  the  case  of  Shindler  v.  Houston,  in  the  Supreme 
Court  of  New  York,  the  proof  showed  a  sale  by  the  plaintiff 
to  the  defendant  of  a  quantity  of  lumber,  which  was  piled 
apart  from  other  lumber  on  a  dock,  and  had  been  previously 
measured  and  inspected,  and  was  in  the  view  of  the  parties 
at  the  time  of  the  bargain.  The  defendant  offered  a  certain 
price  per  foot,  which  the  plaintiff  accepted,  saying,  "The 
lumber  is  yours. "  The  defendant  then  told  the  plaintiff  to 
get  the  inspector's  bill  of  the  lumber  and  take  it  to  the 


1  Elmore  v.  Stone,  1  Taunt.  457.     See  Marsh  r.  Rouse,  44  X.  Y.  643 ; 
Castle  r.  Sworder,  6  Hurlst.  &  N.  828;  Cusack  r.  Robinson,  1  Best  &  S. 
299;  Marvin  v.  Wallis,  6  El.  &  B.  726;  Beaumont  v.  Brengeri,  5  C.  B. 
301;  Chaplin  v.  Rogers,!  East,   192;  Green  v.  Merriam,  28  Vt.   801; 
Safford  i>.  McDonough,  120  Mass.  290;  Knight  v.  Mann,  118  Mass.  143; 
Brown   v.  Hall,  5  Lans.  (N.  Y.)  177;  Janvrin  ».  Maxwell,  23  Wise.   51. 
But  see  Phillips  v.  Hunnewell,  4  Greenl.  (Me.)  376.     As  has  been  noted 
above,  §  317  a,  the  circumstance  that  the  sale  was  for  cash,  and  that  con- 
sequently the  vendor  had  the  right  to  withhold  delivery  till  the  price  was 
paid,  is  to  be  borne  in  mind,  in  considering  the  inference  to  be  drawn  by 
the  jury  from  his  conduct  with  regard  to  the  goods;  the  inference  of  a 
delivery,  of  course,  excluding  his  lien.    See  Tempest  r.  Fitzgerald,  3  Barn. 
&  Aid.  680;  Carter  i>.  Toussaint,  5  Barn.  &  Aid.  855;  Clark  r.  Labreche, 
63  N.  H.  397 ;  Shepherd  v.  Pressey,  32  N.  H.  49 ;  Reinhart  v.  Gregg,  8 
Wash.  191 ;  Speir  v.  Bach.  82  Wise.  192- 

2  Calkins  v.  Lockwood,  17  Conn.  174:  Boynton  v.  Veazie.  24  Me.  286; 
Leonard  r.  Davis,  1  Black  (U.  S.)  476.     See  Jewett  t>.  Warren,  12  Mass. 
300 ;  Tansley  v.  Turner,  2  Bing.  N.  R.  151 ;  Cooper  v.  Bill,  3  Hurlst.  & 
C.  722  ;  Smith  v.  Fisher,  59  Vt.  53. 


430  STATUTE  OF  FRAUDS.  [CH.   XV. 

defendant's  agent,  who  would  pay  the  amount.  This  was 
soon  after  done,  but  payment  was  refused.  In  the  Supreme 
Court  it  was  held  that  the  case  had  been  properly  submit- 
ted to  the  jury  on  their  verdict  on  the  question  of  acceptance 
and  receipt.  Jewett,  J.,  pronounced  judgment,  saying  that 
"delivery  in  a  sale  may  be  either  real,  by  putting  the  thing 
sold  into  the  possession  or  under  the  power  of  the  purchaser, 
or  it  may  be  symbolical  [or  constructive],  when  the  thing 
does  not  admit  of  actual  delivery;  and  guch  delivery  is  suffi- 
cient, and  equivalent  in  its  legal  effects  to  actual  delivery. 
It  must  be  such  as  the  nature  of  the  case  admits."1  The 
Court  of  Appeals  reversed  this  decision,2  not  objecting  to  the 
principle,  but  to  its  application,  and  basing  its  opinion  upon 
the  important  feature  in  the  case  that  what  was  relied  upon 
as  evidence  of  acceptance  and  receipt  was  in  reality  the  acts 
and  declarations  of  the  parties  during  and  as  a  part  of  the 
negotiation,  not  such  subsequent  acts  and  declarations  ag 
would  constitute  the  open  recognition  and  admission  of  an 
existing  contract,  as  the  law  requires. 

§  319  a.  When  the  goods  at  the  time  of  sale  are  in  the 
hands  of  a  bailee  who  holds  them  for  the  seller,  it  has  gener- 
ally been  held  essential  to  the  proof  of  a  constructive  delivery 
to  and  receipt  by  the  buyer,  to  show  not  only  a  giving  up  of 
his  control  by  the  seller,  but  a  communication  of  this  to  the 
bailee,  and  his  assent  to  it  and  attornment  to  the  buyer;  the 
change  in  the  nature  of  the  holding  being  thus  clearly  estab- 
lished. This  is  well  illustrated  by  the  case  of  Bentall  v. 
Burn,  decided  in  the  King's  Bench  in  1824.  It  appeared 
that  the  plaintiff  had  sold  the  defendant  a  hogshead  of  wine, 

1  Shindler  ».  Houston,  1  Denio  52.      See  Hallenbeck  ».  Cochran,  20 
Hnn  (N.  Y.)  416. 

2  1  Comst.  261.     The  dicta  in  the  opinions,  seeming  to  attribute  some 
superior  weight  or  competence  upon  the  question  of  acceptance  and  re- 
ceipt to  proof  of  what  the  parties  did,  as  distinguished  from  what  they 
said,  are  neither  in  accordance  with  authority,  nor,  it  seems,  with  a  sound 
view  of  the  object  and  nature  of  the  statutory  provision.     The  subject  is 
discussed  in  §  320,  post.     See  Smith  v.  Evans,  36  S.  C.  69. 


OH.    XV.]  ACCEPTANCE   AND   RECEIPT.  431 

which,  at  the  time  of  the  sale,  was  lying  in  the  London 
Docks  warehouse,  and  gave  him  a  delivery  order  for  it  upon 
the  warehouseman.  This,  it  was  held,  did  not  amount  to 
receipt  of  the  goods  by  the  buyer,  until  the  order  had  been 
presented,  and  the  dock  company  had,  by  accepting  it,  as- 
sented to  hold  as  agents  of  the  vendee. 1  In  Simmonds  v. 
Humble,  the  same  rule  was  applied,  though  in  that  case  the 
bailee  of  the  goods  was  also  the  factor  of  the  seller,  and  in 
that  capacity  made  the  sale  himself  to  the  buyer.  In  the 
words  of  Byles,  J.,  "Here  was  a  verbal  contract  made  by 
the  bailee  of  the  hops.  The  moment  that  contract  was  com- 
plete, the  bailee  became  the  bailee  of  the  buyers.  No  objec- 
tion, therefore,  could  be  taken  to  the  want  of  a  sufficient 
receipt."2 

§  319  b.  The  evidence  may  also  show  a  constructive  delivery 
to,  and  receipt  by,  the  buyer  of  goods,  which  were  already  in 
his  hands  at  the  time  of  making  the  contract.  This  rule  was 
applied  in  a  case  of  some  delicacy  in  the  Queen's  Bench, 
where  the  goods  in  question,  then  belonging  to  the  plaintiff, 
were  already  in  the  hands  of  the  defendant,  as  agent  for  their 
sale.  The  defendant  told  the  plaintiff  that  he  would  take 
them  himself  at  a  price  then  named,  and  afterward  sold 
them  to  a  third  party,  and  in  a  written  account-current 
delivered  to  the  plaintiff  debited  himself  with  the  price  of 
the  goods  as  sold.  This  was  held  proper  evidence  to  go  to 

1  Bentall  e.  Burn,  3  Barn.  &  C.  423. 

8  Simmonds  v.  Humble,  13  C.  B.  N.  s.  262.  See  also  Farina  v.  Home, 
16  Mees.  &  W.  119;  Godts  r.  Rose,  17  C.  B.  229;  Boardman  v.  Spooner, 
13  Allen  (Mass.)  353;  Gushing  v.  Breed.  14  Allen  (Mass.)  376;  Townsend 
v.  Hargraves,  118  Mass.  325;  Zachrisson  v.  Pope,  3  Bosw.  (N.  Y.)  171; 
Wilkes  v.  Ferris,  5  Johns.  (N.  Y.)  335;  Franklin  r.  Long,  7  Gill  &  J. 
(Md.)  407;  Williams  v.  Evans,  39  Mo.  201;  Bass  r.  Walsh,  39  Mo.  192; 
Hankins  v.  Baker,  46  N.  Y.  666;  Somers  v.  McLaugMin,  57  Wise.  358. 
The  subject  of  the  delivery  of  warehouse  receipts,  etc.,  is  discussed  at 
length  in  Burton  v.  Curyea,  40  111.  320.  See  also  Bassett  v.  Camp,  54 
Vt.  232;  Hinchman  v.  Lincoln,  124  U.  S.  38. 


432  STATUTE   OF  FRAUDS.  [CH.   XV. 

the  jury,  and  to  warrant  their  finding  a  constructive  delivery 
and  receipt  by  the  buyer.1 

§  320.  Coming  now  to  the  question  of  the  general  charac- 
ter of  evidence  necessary  to  establish  acceptance  and  receipt, 
it  is  important  to  notice  at  the  outset  the  view,  sometimes 
advanced,  that  "  mere  words  "  cannot  of  themselves  furnish 
sufficient  evidence  of  either  acceptance  or  receipt.  This 
statement  has  been  especially  made  in  opinions  of  the  courts 
of  New  York,  although  the  decisions  of  that  State  show  that 
it  has  not  yet  become  recognized  or  adopted  as  the  law.  In 
a  case  previously  noted,2  the  decision  turned  upon  the  fact 
that,  in  the  opinion  of  the  Court  of  Appeals,  the  language 
used  by  the  parties  in  making  their  contract  had  been  allowed 
to  go  to  the  jury  as  evidence  of  a  delivery  and  receipt  of  the 
goods  in  recognition  and  fulfilment  of  it.  But  from  the  lan- 
guage of  Wright,  J.,  in  the  case,  it  will  be  seen  that  he  is  of 
the  further  opinion  that  even  the  declarations  of  the  parties, 
subsequently  made,  are  not  evidence  of  receipt.  He  says: 
"Far  as  the  doctrine  of  constructive  delivery  has  been  some- 
times carried,  I  have  been  unable  to  find  any  case  that  comes 
up  to  dispensing  with  all  acts  of  parties,  and  rests  wholly 
upon  the  memory  of  witnesses  as  to  the  precise  form  of  words 
to  show  a  delivery  and  receipt  of  the  goods."  This  state- 
ment asserts  a  difference  between  the  testimony  of  witnesses 
as  to  what  the  parties  did  and  what  they  said,  for  the  pur- 
pose of  proving  the  acceptance  and  receipt,  and  to  give  full 
credence  to  the  former  while  rejecting  the  latter.  But  is  it 
true  that,  either  as  matter  of  authority  or  upon  principle, 
any  such  difference  does  or  should  exist?  Under  the  pro- 
visions of  the  statute,  the  contract  may  be  fully  proved  and 
enforced,  and  the  "prevention  of  frauds  and  perjuries"  be 
sufficiently  accomplished,  though  not  a  line  of  writing  be  pro- 

1  Edan  v.  Dudfield,  1  Q.  B.  302.    See  Lillywhite  v.  Devereux,  ISMees. 
&  W.  285;  Snider  v.  Thrall,  56  Wise.  674;   Dorsey  v.  Pike,  50  Hun 
(N.  Y.)  534. 

2  Shindler  v.  Houston,  1  N.  Y.  268;  ante,  §  319. 


CH.  XV.]         ACCEPTANCE  AND  RECEIPT.  433 

duced  or  sworn  to.  Every  term  and  condition  of  the  contract, 
to  quote  Justice  White,  frequently  "rests  wholly  upon  the 
memory  of  witnesses  as  to  the  precise  form  of  words  "  used. 
There  are  the  questions  of  fact  for  the  jury,  —  "  What  was 
the  contract?  "  "  Did  the  buyer  accept  or  identify  and  recog- 
nize the  goods  as  those  to  be  his  under  it?  "  and,  lastly, 
"Did  the  seller  part  with,  and  the  buyer  receive,  possession 
and  control  of  them?  "  It  will  be  seen  that,  while  these  facts 
must  be  proved,  nothing  is  said  as  to  the  method  of  proving 
them;  that  is  left  to  be  governed  by  the  rules  of  evidence 
which  concern  the  proof  of  all  facts  in  courts  of  law.  In 
short,  that  part  of  the  seventeenth  section  which  mentions 
acceptance  and  receipt  relates  to  the  proof  of  facts  additional 
to  the  making  of  the  bargain,  not  to  new  ways  of  proving 
them.1 

§  821.  The  facts  of  acceptance  and  receipt  being  questions 
for  the  jury,2  circumstances  of  the  slightest  probative  force 
may  properly  be  submitted  to  them  for  that  purpose.  But  it 


1  An  examination  of  the  cases  will  show  that  evidence  has  uniformly 
been  received,  even  in  New  York,  of  the  conduct  of  the  parties,  i.  e.,  what 
they  did  and  said,  without  in  any  way  discriminating  between  acts  of 
doing,  and  acts  of  saying.     See  Stan  ton  v.  Small,  3  Sandf.  (N.  Y.)  230; 
Calkins  v.   Lockwood,  17  Conn.  174;  Wylie  v.  Kelly,  41  Barb.   (N.  Y.) 
594;  Green  v.   Merriam,  28  Vt.  801;  Gray  v.  Payne,  16  Barb.  (N.  Y.) 
277  ;  Bass  v.  Walsh,  39  Mo.  192  ;  Garfield  v.  Paris,  96  U.  S.  557;  Cusack 
v.  Robinson,  1  Best  &  S.299;  Tomkinson  v.  Staight,  17  C.  B.  245;  Marvin 
v.  Wallis,  6  El.  &  B.  726.     In  Walker  v.  Nussey,  16  Mees.  &  W.  302,  it 
was  held  that  an  oral  agreement  to  set  off  from  the  contract  price  of  the 
goods  the  amount  of  a  debt  already  owing  by  the  seller  to  the  buyer, 
being  proved  as  part  of  the  original  bargain  for  the  goods,  would  not  be 
available  as  part  payment,  under  the  statute  ;  it  being  inferable  from  the 
opinions  that,  if  such  oral  agreement  had  been  independent  of  the  bargain 
for  the  goods,  it  would  have  been  competent  evidence  of  payment.     See 
this  case  commented  upon   in    Benjamin   on    Sal<js,    145;    Schmidt  v. 
Thomas,  75  Wise.  529;  Dehority  v.  Paxson,  97  Ind.  258. 

2  Chaplin  v.  Rogers,  1  East  192;  Blenkinsop  v.  Clayton.  7  Taunt.  597; 
Hunt  v.  Hecht,  8  Exch.  814;  Edan  v.  Dudfield,  1  Q.  B.  802;  Lilly  white 
v.  Devereux,  15  Mees.  &  W.  285;  Houghtaling  ».  Ball,  19  Mo.  84;  Wil- 
liams v.  Evans,  39  Mo.  201;  Wylie  v.  Kelly,  41  Barb.  (N.  Y.)  594;  Gar- 
field  v.  Paris,  96  U.  S.  557;  Hinchman  v.  Lincoln,  124  U.  S.  38. 

28 


434  STATUTE   OF   FRAUDS.  [CH.   XV. 

is  for  the  court  to  withhold  the  facts  from  the  jury  when  they 
are  not  such  as  can  in  law  warrant  finding  an  acceptance  and 
an  actual  receipt;  and  this  includes  cases  where,  though  the 
court  might  admit  there  was  a  scintilla  of  evidence  tending  to 
show  the  acceptance  and  receipt,  they  would  still  feel  bound 
to  set  aside  a  verdict  in  which  they  were  found  upon  that 
evidence.1 

§  321  a.  Where  the  thing  contracted  to  be  sold  is  denned, 
specified,  and  ascertained  at  the  time  of  the  purchase,  proof 
of  the  fact  that  the  buyer  then  agreed  to  buy  that  particular 
thing,  and  consequently  thereby  finally  recognized  and  identi- 
fied it  as  the  particular  thing  he  was  to  get,  will,  in  general, 
be  a  sufficient  proof  of  an  acceptance  by  him.  This  was 
clearly  brought  out  in  the  case  of  Cusack  v.  Robinson,  by 
Justice  Blackburn,  who  said :  "  There  was  also  sufficient  evi- 
dence that  the  defendant  had,  at  Liverpool,  selected  these 
specific  156  firkins  of  butter,  as  those  which  he  then  agreed 
to  take  as  his  property  as  the  goods  sold,  and  that  he  directed 
those  specific  firkins  to  be  sent  to  London.  This  was  cer- 
tainly evidence  of  an  acceptance."2 

§  321  b.  The  application  of  this  principle  to  the  many  re- 
ported cases  of  the  sale  of  a  specific  thing,  e.  g.,  a  horse,  a 
jewel,  or  a  piano,  would  seem  to  make  the  proof  of  the  fact 
that  the  party  agreed  distinctly  for  its  purchase  sufficient  to 
warrant  the  jury  in  finding  an  acceptance,  which,  coupled 

1  Norman  v.  Phillips,  14  Mees.  &  W.  277;  Bushel  ».  Wheeler,  15  Q.  B. 
442,  note ;  Stone  v.  Browning,  68  N.  Y.  598.     In  Denny  v.  Williams,  5 
Allen  (Mass.)  1,  the  passage  in  the  text  is  affirmed,  with  the  qualification 
that,  "  if  the  evidence  is  such  that  the  court  would  set  aside  any  number 
of  verdicts  rendered  upon  it,  toties  quotie.*,  then  the  cause  should  be  taken 
from  the  jury  by  instructing  them  to  find  a  verdict  for  the  defendant.    On 
the  other  hand,  if  the  evidence  is  such  that,  though  one  or  two  verdicts 
rendered  upon  it  would  be  set  aside  on  motion,  yet  a  second  or  third  ver- 
dict would  be  suffered  to  stand,  the  cause  should  not  be  taken  from  the 
jury,  but  should  be  submitted  to  them  under  instructions."     Per  Chap- 
man, J.     Hinchman  v.  Lincoln,  124  U.  S.  38. 

2  Cusack  v.  Robinson,  1  Best  &  S.  308;  see  also  Bog  Lead  Mining  Co. 
v.  Montague,  10  C.  B.  N.  s.  489,  per  Willes,  J.,  citing  Cusack  v.  Robinson 
•with  approval. 


CH.  XV.]          ACCEPTANCE  AND  RECEIPT.  435 

with  their  finding  a  receipt  also,  upon  sufficient  evidence, 
would  sufficiently  attest  the  contract  and  enable  the  plaintiff 
to  proceed  with  his  action  upon  it.  And  a  close  examination 
of  the  language  of  the  opinions  will,  it  is  believed,  show  that 
the  attention  of  the  court  in  each  of  these  cases  was  particu- 
larly devoted  to  the  evidence  of  the  subsequent  conduct  of  the 
parties  toward  the  chattel,  as  bearing  upon  and  establishing 
an  inference  of  delivery  and  receipt.1 

§  321  c.  It  is,  however,  highly  important  to  bear  in  mind 
that  the  principle  noted  above  applies  only  where  the  con- 
tract of  sale  concerns  goods  which  the  buyer,  by  his  bargain, 
agrees  to  take  as  they  are,  and  does  not  contain  any  provision 
giving  him  the  right  of  subsequent  examination  of  the  goods, 
to  ascertain  what  they  are,  and  whether  they  are  what  he 
agrees  to  take.  In  this  latter  case,  it  is  evident  that  the 
identification  and  recognition,  which  facts  constitute  the 
acceptance,  must,  by  the  very  terms  of  the  contract,  take 
place  subsequently  to  the  time  of  its  making.2 

§  321  d.  As  has  been  suggested  in  a  previous  section,  the 
conduct  of  the  parties  with  regard  to  the  goods  furnishes  the 
source  from  which  the  jury  are  to  ascertain  whether  there  has 
been  an  acceptance  and  an  actual  receipt  of  the  goods  or  a 
portion  of  them.  With  regard  to  the  acceptance,  the  con- 
duct of  the  buyer  is  most  important,  as  the  acceptance  is  a 
thing  in  which  he  takes  by  far  the  greater,  and  usually  the 
sole  part.  When  goods  have  been  sent  to  him  to  be  exam- 
ined and  approved,  the  conduct  of  the  seller  is  generally 
material,  on  the  question  of  acceptance,  only  as  it  appears 
to  be  conduct  which  precludes  acceptance  by  the  buyer,  —  is 

1  See  particularly  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680,  per  Hol- 
royd,  J.     In  Saunders  v.  Topp,  4  Exch.  390,  the  question  was  left  unde- 
cided, there  being  evidence  of  an  acceptance  subsequent  to  the  time  of  the 
sale. 

2  Compare  Hewes  v.  Jordan,  39  Md.  472,  which  seems  to  be  thus  dis- 
tinguished from  Cusack  v.  Robinson,  §  321  a,  supra;  Beaumont  v.  Bren- 
geri,  5  C.  B.  301;  Maberley  v.  Sheppard,  10  Bing.  99;  Smith  v.  Fisher, 
59  Vt.  53. 


436  STATUTE   OF  FRAUDS.  [CH.    XV. 

incompatible  with  such  acceptance.  Where,  for  instance, 
acceptance  of  goods  sold  by  sample  was  sought  to  be  shown 
from  the  fact  of  the  goods  not  having  been  returned  by  the 
buyer  immediately  after  delivery,  evidence  that,  while  they 
remained,  the  seller  had  notified  the  holder,  a  railway  com- 
pany, to  hold  the  goods  thereafter  for  him,  was  said  to  be 
material  upon  the  question  of  any  subsequent  acceptance.1 

§  321  e.  The  conduct  of  the  buyer  showing  an  acceptance 
consists  in  his  so  dealing  with  the  goods  as  to  warrant  the 
inference  that  he  has  admitted  and  recognized  them,  or  such 
part  of  them  as  he  has  dealt  with,  to  be  his  goods  under  the 
contract.  And  this  inference,  it  is  held,  may  be  drawn  as 
well  from  his  silence  and  failure  to  act,  as  from  what  he  does 
and  says.2 

§  322.  Upon  the  question  of  receipt,  the  seller  being  the 
party  chiefly  to  be  prejudiced,  because  of  the  loss  of  his  lien 
incident  to  his  parting  with  the  control  of  the  goods,  it  is  his 
conduct  that  is  of  primary  importance,  and  the  conduct  of  the 
buyer  with  regard  to  the  goods  is  material,  chiefly  because  of 
the  inference  arising  from  the  seller's  acquiescence  in  it. 
In  Chaplin  v.  Rogers,  after  a  verbal  sale  had  been  made  of 
a  stack  of  hay,  the  resale  of  a  part  of  it  by  the  vendee  to  a 
third  person  was  held  evidence  of  a  delivery,  because,  as  said 
Lord  Kenyon,  C.  J.,  "here  the  defendant  dealt  with  this  com- 
modity afterwards  as  if  it  were  in  his  actual  possession,  for 
he  sold  part  of  it  to  another  person."3  But  it  is  manifest 
that  the  sale  to  another  person  was  evidence  of  a  delivery  of 
the  hay  to  the  vendee  of  the  first  contract  only  so  far  as, 
under  the  circumstances,  it  afforded  evidence  that  the  vendor 
in  that  contract  had  consented  to  and  acquiesced  in  such 
dealings  as  would  tend  to  show  the  giving  up  of  his  lien. 

§  323.   And  so,  in  Tempest  v.  Fitzgerald,4  where  the  buyer 

1  Smith  r.  Hudson,  6  Best  &  S.  431  ;  and  see  Taylor  v.  Wakefield,  6 
El.  &  B.  765. 

2  Rasch  r.  Bissell,  52  Mich.  455.     See  ante,  §§  316  #-316  i. 
8  Chaplin  v.  Rogers,  1  East  195. 

4  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  380. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  437 

of  a  horse  ordered  him  to  be  taken  out  of  the  stable,  and  he 
and  his  servant  rode  him,  and  his  servant  cleaned  him,  and  he 
gave  directions  for  his  treatment,  and  in  Holmes  v.  Hoskins,1 
where  the  horse,  though  remaining  in  the  seller's  field,  was 
fed  on  the  buyer's  hay,  the  inference  of  receipt  arising  from 
these  acts  indicative  of  ownership  was  held  to  be  controlled 
by  the  fact  that,  in  each  case,  the  terms  of  the  sale  were  cash, 
and,  as  the  seller  could  not  have  intended  to  part  with  his 
property  until  he  was  paid,  the  buyer  could  not  receive  it, 
within  the  meaning  of  the  statute,  so  as  to  conclude  the 
bargain.2 

§  324.  In  Elmore  v.  Stone,  the  constructive  delivery  and 
consequent  receipt  was  shown  by  the  conduct  of  the  seller  in 
consenting  to  keep,  and  keeping,  the  horses,  after  the  sale, 
at  livery;  that  is,  as  the  bailee  of  the  buyer.3  And  in  Howe 
v.  Palmer,  where  the  defendant  orally  purchased  of  the  plain- 
tiff a  quantity  of  tares  by  sample,  and  left  them  on  the  plain- 
tiff's premises,  saying  that  he  had  no  immediate  use  for  them, 
and  requested  that  they  might  remain  there  till  he  wanted  to 
sow  them,  which  was  agreed  to;  and  afterwards  the  tares 
were  measured  out  by  the  agent  of  the  plaintiff  and  set  apart 
in  his  granary,  and  ordered  to  be  delivered  to  the  defendant 
when  he  called,  and  the  defendant  afterwards  refused  to  take 
them,  for  which  the  action  was  brought;  this  evidence  was 
held  ample  to  prove  a  delivery,  but  the  plaintiff  was  non- 
suited because  he  could  not  show  that  the  defendant  had 
ever  accepted  the  tares  thus  set  apart  for  him  as  satisfying 
the  contract.4 

§  325.  The  circumstance  of  marking  the  goods  with  the 
name  of  the  buyer  is  sometimes  treated  as  if  it  could  concern 

1  Holmes  ?>.  Hoskins,  9  Exch.  753. 

8  See  also  Carter  r.  Toussaint,  5  Barn.  &  Aid.  855;  Safford  v.  McDon- 
ough,  120  Mass.  290;  Washington  Ice  Co.  v.  Webster,  62  Me.  341; 
Jerney  v.  Doten,  70  Cal.  399. 

«  Elmore  ».  Stone,  1  Taunt.  457. 

4  Howe  v.  Palmer,  3  Barn.  &  Aid.  321.  See  Beaumont  u.  Brengeri, 
5  C.  B.  301,  and  Castle  v.  Sworder,  6  Hurlst.  &  N.  828. 


438  STATUTE   OF   FRAUDS.  [CH.   XV. 

only  their  acceptance;  again,  as  if  it  had  to  do  only  with 
their  receipt.  But  from  all  the  cases  it  seems  clear  that 
marking  the  goods  is  not  a  peculiar  transaction  for  which  any 
special  rule  has  been,  or  should  be,  laid  down ;  but  that,  like 
any  other  act  done  to  them,  the  marking  may  be  evidence  for 
the  jury  of  the  buyer's  identification  and  acknowledgment  of 
the  goods  he  is  to  receive,  or  of  the  seller's  devesting  himself 
of  his  lien,  by  consenting  to  hold  as  bailee.  And  sometimes, 
indeed,  both  buyer  and  seller  may  be  affected  by  the  mark- 
ing; for  it  may  show  both  the  identification  by  the  former, 
and  the  abandonment  of  his  lien  by  the  latter. 1 

§  326.  It  is,  of  course,  always  to  be  noticed  that  the  effect 
of  the  acts  relied  on  to  show  an  acceptance  or  an  actual 
receipt  may  be  much  qualified  by  the  circumstances  under 
which  they  were  done.  Thus  it  has  been  held  that  the  tak- 
ing out  of  a  sample,  or  the  opening  and  spreading  out  of  the 
goods  delivered,  even  though  they  be  so  injured  thereby  as  to 
diminish  their  value,  may  not  conclude  the  buyer.2  Nor  will 
a  delivery,  or  a  taking  possession  of  the  goods,  not  in  pursu- 
ance of  the  intention  or  with  the  consent  of  the  seller,  vest 
their  possession  or  control  in  the  buyer,  or  be  evidence  of  a 
receipt.3  This  is  well  illustrated  by  the  case  of  Taylor  v. 

1  Thus,  in  the  cases  of  Proctor  v.  Jones,  2  Carr.  &  P.  532,  and  Rappleye 
v.  Adee.  65  Barb.   (N.  Y.)  589,  it  was  evidence  of  acceptance;  in  Ander- 
son v.  Scott,  1  Camp.  235,  note,  Bill  v.  Bament,  9  Mees.  &  W.  36,  Byassee 
v.  Reese,  4  Met.  (Ky.)  372,  and  Dyer  v.  Libby,  61  Me.  45,  of  receipt  (and 
see  Walden  v.  Murdock,  23  Cal.  540) ;  and  in  Hodgson  v.  Le  Bret,  1  Camp. 
233,  Baldey  v.  Parker,  2  Barn.  &  C.  37,  and  Kealy  v.  Tenant,  13  Jr.  C. 
L.  394,  of  both. 

2  Gorman  r.  Boddy,  2  Carr.  &  K.  145;  Kent  ».  Huskinson,  3  Bos.  &  P. 
233;  Baylis  v.  Lundy,  4  L.  T.  N.  8.  176  ;  Curtis  v.   Pugh,  10  Q.  B.  Ill; 
Elliott  17.  Thomas,  3  Mees.   &  W.  170 ;  Carver  v.  Lane,  4  E.  D.   Smith 
(N.  Y.)  168      See  Bacon  v.  Eccles,  42  Wise.  227. 

8  Godts  i».  Rose,  17  C.  B.  229;  Phillips  v.  Bistolli,  2  Barn.  &  C.  511 ; 
Baker  v.  Cuyler,  12  Barb.  (1ST.  Y.)  667 ;  Leven  r.  Smith,  1  Denio  (X.  Y.) 
571;  Mechanics  &  Traders'  Bk.  v.  Farmers  &  Mechanics'  Nat  Bk.,  60 
N.  Y.  40.  See  Davis  v.  Eastman,  1  Allen  (Mass.)  422.  It  might  how- 
ever be  evidence  of  an  acceptance;  see  Tempest  r.  Fitzgerald,  3  Barn. 
&  Aid.  680,  per  Abbott,  C.  J. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  439 

Wakefield,  where  a  landlord  had  agreed  orally  with  his  tenant 
to  sell  him,  at  the  expiration  of  his  term,  certain  goods  then 
in  his  possession.  At  the  end  of  the  tenancy,  the  tenant 
tendered  the  price,  but  the  landlord  refused  to  take  it,  and 
the  tenant  subsequently  brought  action  against  him  for  the 
conversion  of  the  goods.  In  support  of  it,  he  endeavored  to 
rely  upon  his  having  had  the  goods  in  his  possession  as 
evidence  of  a  receipt  by  him;  but,  as  the  court  in  their 
opinions  pointed  out,  until  payment  or  tender,  the  tenant 
had  no  right  to  hold  as  buyer ;  and  the  subsequent  refusal  of 
the  landlord  to  give  him  such  a  right  evidently  negatived 
any  inference  of  delivery  under  the  contract  of  sale.1 

§  32G  a.  It  was  said  by  Heath,  J.,  in  Kent  v.  Huskinson,2 
that  the  acceptance  by  the  buyer  must  be  "such  as  com- 
pletely affirms  the  contract."  It  is  obvious,  however,  that 
the  mere  act  of  accepting  goods,  though  it  may  give  an  indi- 
cation more  or  less  sure  of  the  quantity  and  quality  bargained 
for,  gives  none  whatever  as  to  the  price  and  time,  or  other 
conditions  of  payment,  and  the  same  remark  applies  with 
nearly  the  same  force  to  the  giving  of  earnest  to  bind  the 
bargain.  So  far,  then,  as  these  alternative  methods  of  fixing 
the  liabilities  of  the  parties  go  to  prove  the  contract,  they 
fall  far  short  of  the  written  memorandum,  which,  as  we  shall 
see  hereafter,  is  required  to  afford  evidence  in  itself  of  the 
terms  agreed  upon.  The  statute  requires  that  when  an  oral 
contract  of  sale  is  sought  to  be  enforced  at  law,  and  the  stat- 
ute is  relied  upon  as  a  bar  to  its  enforcement,  this  bar  may 
be  removed  by  the  production  of  certain  evidence  in  writing, 
or  by  oral  proof  of  part-payment,  or  by  satisfying  the  jury 
that  the  conduct  of  the  parties  to  the  contract  has  been  such 
as  to  show  that  the  relation  of  buyer  and  seller  has  been 
recognized  and  acted  upon  by  them.  This  may  be  done  by 
proof  of  the  two  things,  acceptance  and  receipt  of  the  goods, 

1  Taylor  v.  Wakefield,  6  El.  &  B.  765,  especially  the  opinion  of  Cromp- 
ton,  J. 

a  Kent  v.  Huskinson,  3  Bos.  &  P.  233. 


440  STATUTE   OF  FRAUDS.  [CH.   XV. 

or  a  part  of  them ;  that  the  buyer  has  openly  recognized  and 
identified  the  goods  as  his  by  purchase,  and  that  the  seller 
has  put  them  into  his  custody  or  control  as  their  owner.  The 
sufficiency  of  this  requirement  as  a  guard  against  fraud  and 
perjury  is  manifest ;  for  it  will  be  observed  that  facts  must 
be  proved,  sufficient  to  support  the  reasonable  inference  that 
the  acceptance  and  the  receipt  have  taken  place ;  and,  as  is 
seen  in  many  of  the  cases,  these  facts  will  often  be  so  defi- 
nite and  so  public  in  their  nature,  that  an  attempt  to  prove 
them  by  false  swearing  would  be  readily  defeated.  When, 
therefore,  these  additional  matters  of  acceptance  and  receipt 
have  been  made  to  appear  to  the  satisfaction  of  the  jury,  the 
contract,  though  it  rest  entirely  upon  parol  proof,  is  com- 
pletely available,  like  any  other  contract,  between  the  parties. 
The  application  of  this  principle  is  seen  in  a  case  before  the 
Court  of  Common  Pleas,  where  the  plaintiff  delivered  to  the 
defendant  a  piano,  at  the  price  of  £15,  and  it  was  accepted 
and  received  by  him.  In  an  action  for  the  price,  it  was 
proved  that,  when  the  piano  was  delivered,  the  plaintiff  asked 
ready  money  for  it,  but  the  defendant  said  he  was  entitled  to 
keep  it  as  security  for  the  payment  of  certain  bills,  and  refused 
to  deliver  it  up  again  to  the  plaintiff.  Parol  evidence  was 
heard  at  the  trial  as  to  what  the  agreement  really  was,  and, 
the  jury  having  found  for  the  plaintiff,  the  defendant  on 
leave  moved  to  set  it  aside  and  enter  a  nonsuit.  In  support 
of  the  motion  it  was  contended  that  by  acceptance  of  the 
goods  "  so  sold  "  the  statute  meant  acceptance  of  them  as 
sold  under  the  contract  alleged,  and  that  it  must  be  such  an 
acceptance  as  is  equivalent  to  a  memorandum  in  writing,  and 
shows  all  the  terms  of  the  contract,  and  that  parol  evidence 
should  not  have  been  admitted  to  explain  the  acceptance  of 
the  piano.  The  court  discharged  the  rule  on  grounds  which 
appear  in  the  following  extracts  from  the  opinions  of  the 
judges.  Jervis,  C.  J.  :  "  My  mind  has  wavered  considerably 
during  the  discussion  of  this  case.  At  one  time  I  was  in- 
clined to  think  that  there  had  been  no  acceptance  under  the 


CH.  XV.]          ACCEPTANCE  AND  RECEIPT.  441 

statute ;  but,  after  looking  into  the  matter,  I  now  think  that 
there  was,  and  that  the  rule  ought,  therefore,  to  be  discharged. 
In  order  to  satisfy  the  statute,  on  a  sale  of  goods  for  £10  or 
more,  there  must  be  either  a  writing,  or  a  part-payment,  or 
a  delivery  and  acceptance  of  the  goods  'so  sold.'  I  think 
those  words  mean  an  acceptance  of  goods  sold  at  a  price  of 
£10  or  more.  In  this  case  there  is  no  doubt  that  there  was 
a  delivery  of  that  which  the  plaintiffs  say  was  sold  for  more 
than  £10;  and  there  is  no  doubt  there  was  an  acceptance,  as 
the  defendant  says  that  he  accepted  on  certain  terms.  It  is 
just  as  if  the  defendant  had  said  he  accepted  on  six  months' 
credit.  The  terms  of  the  contract  as  to  the  time  when  the 
money  is  to  be  paid  would  then  be  the  question  in  dispute, 
there  being  no  doubt  about  the  acceptance.  The  jury  has 
found  the  acceptance,  and  the  terms  set  up  by  the  plaintiffs. 
This  case  really  does  not  differ  from  the  ordinary  case  where 
a  man  says  to  another,  '  I  have  sold  you  goods  for  present 
payment, '  and  the  other  answers, '  You  sold  them  on  a  month's 
credit,  and  you  have  brought  your  action  too  soon.'  The 
fact  that  there  is  no  case  to  be  found  in  the  books  to  support 
the  defendant's  view  affords  a  strong  argument  to  show  that 
it  is  not  in  accordance  with  the  meaning  of  the  statute.  I 
think,  in  this  case,  the  defendant  is  precluded  by  the  finding 
of  the  jury,  and  that,  therefore,  the  rule  ought  to  be  dis- 
charged." Williams,  J.  :  "I  think  there  is  no  doubt  there 
was  a  delivery  and  acceptance  under  the  Statute  of  Frauds. 
No  doubt  the  acceptance  was  accompanied  by  a  denial  by  the 
defendant  of  one  of  the  terms  necessary  to  support  this  action, 
and  for  some  time  I  felt  great  difficulty  in  saying  that  any 
proof  could  be  offered,  in  lieu  of  writing,  which  amounted, 
instead  of  a  corroboration  of  the  contract,  to  a  denial  of  it. 
But,  upon  the  whole,  I  am  of  opinion  that  nothing  was  in- 
tended in  the  statute,  except  that  the  defendant  should  have 
accepted  in  the  quality  of  vendee.  The  legislature  has 
thought  that  where  there  is  a  fact  so  consistent  with  the 
alleged  contract  of  sale  as  acceptance,  it  would  be  quite  safe 


442  STATUTE   OF  FRAUDS.  [CH.   XV. 

to  dispense  with  the  necessity  of  a  writing.  The  statute  does 
not  mean  that  the  thing  which  is  to  dispense  with  the  writ- 
ing is  to  take  the  place  of  all  the  terms  of  the  contract,  but 
that  the  acceptance  is  to  establish  the  broad  fact  of  the  rela- 
tion of  vendor  and  vendee.  Here  the  relation  of  vendor  and 
vendee  was  established,  and  that  was  sufficient  to  satisfy  the 
statute."  Crowder,  J.  :  "I  think  there  was  an  acceptance 
within  the  Statute  of  Frauds.  The  jury  having  found  the 
acceptance,  there  is  no  doubt  there  was  a  delivery  and  accept- 
ance, and  that  enables  the  plaintiff  to  lay  before  the  jury 
evidence  of  the  terms  of  the  contract.  It  seems  to  me,  that 
all  that  was  necessary  under  the  statute  was  that  there  should 
have  been  a  contract  of  sale,  and  that,  under  that  contract, 
the  vendee  should  have  accepted;  it  being  a  question  for  the 
jury  on  the  parol  evidence  what  were  the  precise  nature  and 
terms  of  the  contract. "  1 

§  327.  The  acceptance  and  receipt  which  the  statute  re- 
quires may  be  inferred  from  the  conduct  of  the  agent  of  the 
buyer  or  seller,  acting  under  proper  authority,  as  well  as  from 
that  of  the  principals  themselves.2  One  of  the1  parties,  it  is 
held,  cannot  be  the  agent  of  the  other ; 3  but  this  seems  a  some- 
what arbitrary  rule,  and,  as  a  matter  of  principle,  there  seems 

1  Tomkinson  r.  Staight,  25  L.  J.  C.  P.  85.     See  Danforth  v.  Walker, 
40  Vt.  257. 

2  Snow  v.  Warner,  10  Met.  (Mass.)  132;  Out-water  v.  Dodge,  6  Wend 
(X.  Y.)  397  ;  Howe  v.  Palmer,  3  Barn.  &  Aid.  321 ;  Astey  v.  Emery,  4 
Maule  &  S.  262.     See  Barkley  v.  Rensselaer  &  Saratoga  R.  R.  Co.,  71 
N.    Y.   205;    Rogers  v.  Gould,  6  Hun   (X.  Y.)  229;  Field  v.   Runk,  22 
N.  J.  L.  525 ;  and  post,  §  336 ;  Alexander  v.  Oneida  County,  76  Wise.  56 ; 
Vanderbilt  v.  Central  R.  R.,  43  X.  J.  Eq.  669.     Where  a  Michigan  man 
died  after  purchasing  goods  in  Xew  York   by  sample,  and   before. their 
arrival  at  his  store  in  Michigan,  it  was  held  that  acceptance  and  receipt 
of  the  goods  by  his  administrator  were  unauthorized,  and  the  seller  was 
allowed  to  recover  the  goods  by  replevin.     Smith  v.  Brennan,  62  Mich. 
349. 

8  See  Clark  v.  Tucker,  2  Sand.  (X.  Y.)  157;  Caulkins  v.  Hellman,  14 
Hun  (X.  Y.)  330.  As  to  whether  the  agent  of  the  seller  may  be  the 
agent  of  the  buyer  for  this  purpose,  qucere.  Howe  v.  Palmer,  3  Barn.  & 
Aid.  321,  remarks  of  Holroyd,  J. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  443 

to  be  110  reason  why,  upon  sufficient  proof  of  the  agency,  it 
should  not  be  allowed  the  same  effect  as  any  other. 

§  327  a.   The  extent  of  the  authority  of  the  agent  to  bind 
his  principal  is  a  matter  on  which  the  courts  have  of  late  in- 
clined to  exercise  some  care ;  as  is  shown  particularly  by  the 
course  of  decisions  in  cases  where  the  goods  in  question  have 
been  delivered  to,  and  received  by,  a  carrier  for  transporta- 
tion to  the  buyer.     In  an  early  case  at  nisi  prius,  where  a 
hogshead  of  gin,  purchased  verbally  by  the  defendant  from 
the  plaintiff,  was  shipped  to  him  by  a  certain  vessel,  and  it 
appeared  that,  in  the  course  of  dealing  between  the  parties, 
it  had  been  customary  for  the  plaintiffs  to  ship  similar  goods 
to  the  defendant  by  the  same  vessel,  and  the  defendant  had 
always  received  them,  it  was  held  that  under  those  circum- 
stances the  defendant  must  be  considered  as  having  consti- 
tuted the  master  of  the  vessel  his  agent  to  accept  and  receive 
the  goods.1    And  in  another  instance  it  appears  to  have  been 
held  by  the  Court  of  Queen's  Bench  that  the  same  effect  of 
concluding  the  contract  followed  from  the  goods  being  deliv- 
ered to  a  carrier  designated  by  the  buyer  for  that  purpose.2 
So  far  as  these  early  cases  touch  the  question  of  receipt  by  a 
carrier,  they  are  not  inconsistent  with  the  current  of  author- 
ity.    Inasmuch  as  a  delivery  by  the  seller  of  the  goods  sold  to 
a  carrier  who  is  not  his  own  agent  will  divest  him  of  his 
lien,  the  possession  must  be  in  the  buyer.     So  far,  then,  as 
the  question  of  receipt  goes,  the  rule  is,  that  if  by  the  agree- 
ment the  seller  is  to  deliver  the  goods  to  a  carrier  or  other 
person,  who  subsequently  is  to  transport  them  for  the  buyer, 
this  delivery  amounts  to  an  actual  receipt  by  the  buyer.     It 
is  quite  as  if  the  seller  had  contracted  to  deliver  the  goods 
on  board  a  certain  ship,  or  at  some  freight  or  transportation 
depot;  the  master  of  the  ship  or  the  agent  of  the  railroad  or 
steamer  receives  them,   it  is  true,  but  the  essence  of  the 
delivery  lies  in  the  fact  that  the  seller  has  delivered  the 

1  Hart  v.  Sattley,  3  Camp.  528. 

2  Dawes  v.  Peck,  8  T.  R.  330.     See  Spencer  p.  Hale,  30  Vt.  314. 


444  STATUTE   OF   FRAUDS.  [CH.    XV. 

goods  at  the  place  designated,  rather  than  to  some  person 
in  charge,  who  may  well  be  wholly  unknown  to  buyer  and 
seller  alike.  And  in  this  point  of  view,  the  question  of  the 
authority  of  such  a  person  is  evidently  of  slight  importance, 
as  compared  with  the  fact  that  a  delivery  has  been  made  as 
the  contract  provided.1  Where,  however,  by  his  contract, 
the  seller  is  to  forward  the  goods  to  a  certain  place,  and  em- 
ploys a  carrier  for  this  purpose ;  or  where,  even  though  the 
buyer  pays  the  expenses  of  and  performs  the  transportation, 
yet  the  seller  preserves  his  possession,  as  by  making  out  the 
bill  of  lading  to  himself  or  his  own  agent;  or  where  the 
goods  are  sent  by  the  carrier,  to  be  paid  for  on  delivery; 
these  circumstances  show  that  the  delivery  to  the  carrier  did 
not  devest  the  seller  of  his  lien,  and  consequently  did  not 
establish  a  receipt  under  the  statute. 

§  327  b.  But  as  to  the  doctrine  that  the  carrier,  when  he 
has  received  the  goods,  must  also  be  taken  to  have  accepted 
them  under  authority  from  the  buyer,  and  thereby  to  have 
established  the  contract,  this  is  no  longer  law.2  And  that  it 
should  not  be,  seems  clear.  So  far  as  the  receipt  goes,  the 
buyer  cannot  well  complain,  for  he  has  himself  instructed 
the  seller  how  to  make  the  delivery  and  transfer  the  posses- 
sion. But  in  the  absence  of  proof  that  the  buyer  has  actually 
vested  in  the  carrier  the  authority  (which  under  ordinary  cir- 
cumstances he  certainly  would  not  have)  to  acknowledge  that 
goods  delivered  under  the  contract  are  in  conformity  with  its 
terms,  no  inference  of  such  authority  in  the  carrier  can  arise 
from  the  mere  fact  that  the  goods  have  been  delivered  to 
him.3 

1  Allard  v.  Greasert,  61  N.  Y.  1 ;  and  see  Wilcox  Silver  Plate  Co.  v. 
Green,  72  N.  Y.  18. 

2  Hart  v.  Bush,  El.  B.  &  E.  494,  per  Lord  Campbell,  C.  J. ;  Rindskopf 
«;.  De  Ruyter,  39  Mich.  1. 

8  Nicholson  v.  Bower,  1  El.  &  E.  172;  Bushel  ».  Wheeler,  15  Q.  B. 
442,  note,  per  Coleridge,  J. ;  Smith  v.  Hudson,  6  Best  &  S.  431,  per  Black- 
burn, J.  ;  Johnson  v.  Cuttle,  105  Mass.  447;  Atherton  v.  Newhall,  123 
Mass.  141.  See  Quintard  v.  Bacon,  99  Mass.  185;  Keiwert  v.  Meyer,  62 
Ind.  587;  Hausman  v.  Nye,  62  Ind.  485;  Taylor  v.  Mueller,  30  Minn. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  445 

§  328.  Several  of  the  cases  which  establish  this  principle 
have  also  contained  the  statement  that  there  can  be  no 
acceptance  to  satisfy  the  statute  so  long  as  the  buyer  is  after- 
ward to  be  at  liberty  to  return  any  of  the  goods  as  objection- 
able under  the  contract  in  quantity  or  quality.  As  thus 
stated,  this  rule  for  determining  the  question  of  acceptance 
has  been  very  forcibly  attacked  in  a  judgment  of  the  Queen's 
Bench,  delivered  by  Chief  Justice  Lord  Campbell.  The 
defendant  purchased  a  quantity  of  wheat  of  the  plaintiff, 
by  sample,  and  directed  that  the  bulk  should  be  delivered  on 
the  next  morning  to  a  carrier  named  by  himself,  who  was  to 
convey  it  from  the  place  where  it  then  was  to  a  market  town ; 
and  he  took  away  the  sample  with  him.  On  the  following 
morning  the  bulk  was  delivered  to  the  carrier,  and  the 
defendant  resold  it  at  the  market  town  that  day  by  the  same 
sample.  The  carrier  conveyed  the  wheat  by  order  of  the 
defendant,  who  had  never  seen  it,  to  the  sub-vendee,  who 
rejected  it  as  not  corresponding  with  the  sample;  and  the 
defendant,  on  notice  of  this,  repudiated  his  contract  with  the 
plaintiff  on  the  same  ground.  The  plaintiff  having  obtained 
a  verdict  below,  a  rule  to  set  it  aside  and  enter  a  nonsuit  on 
the  ground  that  there  had  been  no  acceptance  and  receipt  of 
the  wheat  by  the  defendant,  was  now  discharged.  Lord 
Campbell  said:  "Judges  as  well  as  counsel  have  supposed 
that,  to  dispense  with  a  written  memorandum  of  the  bargain, 
there  must  first  have  been  a  receipt  of  the  goods  by  the 
buyer,  and  after  that  an  actual  acceptance  of  the  same. 
Hence,  perhaps,  has  arisen  the  notion  that  there  must  have 
been  such  an  acceptance  as  would  preclude  the  buyer  from 
questioning  the  quantity  or  quality  of  the  goods,  or  in  any 
way  disputing  that  the  contract  has  been  fully  performed  by 
the  vendor."  He  then  recites  the  language  of  the  seven- 

343;  Simmons  Co.  ».  Mullen,  33  Minn.  195;  Fontaine  v.  Bush,  40  Minn. 
141;  Smith  v.  Brennan.  62  Mich.  349;  Hudson  Furniture  Co.  v.  Freed 
Furniture  Co.,  36  Pac.  Rep.  (Utah)  132.  But  see  Liggett  v.  Collier,  56 
N.  W.  Rep.  (Iowa)  417. 


446  STATUTE   OF   FRAUDS.  [CH.   XV. 

teenth  section,  and  proceeds  to  say :  "  It  is  remarkable  that, 
notwithstanding  the  importance  of  having  a  written  memo- 
randum of  the  bargain,  the  legislature  appears  to  have  been 
willing  that  this  might  be  dispensed  with  where  by  mutual 
consent  there  has  been  part-performance.  Hence  the  pay- 
ment of  any  sum  in  earnest,  to  bind  the  bargain  or  in  part- 
payment,  is  sufficient.  .  .  .  The  same  effect  is  given  to  the 
corresponding  act  by  the  vendor,  of  delivering  part  of  the 
goods  sold  to  the  buyer,  if  the  buyer  shall  accept  such  part 
and  actually  receive  the  same.  As  part-payment,  however 
minute  the  sum  may  be,  is  sufficient,  so  part-delivery,  how- 
ever minute  the  portion  may  be,  is  sufficient.  This  shows 
conclusively  that  the  condition  imposed  was  not  the  complete 
fulfilment  of  the  contract  to  the  satisfaction  of  the  buyer.  In 
truth,  the  effect  of  fulfilling  the  condition  is  merely  to  waive 
written  evidence  of  the  contract,  and  to  allow  the  contract  to 
be  established  by  parol  as  before  the  Statute  of  Frauds  was 
passed.  The  question  may  then  arise  whether  it  has  been 
performed  either  on  the  one  side  or  the  other.  The  accept- 
ance is  to  be  something  which  is  to  precede,  or,  at  any  rate,  to 
be  contemporaneous  with  the  actual  receipt  of  the  goods,  and 
is  not  to  be  a  subsequent  act,  after  the  goods  have  been  actu- 
ally received,  weighed,  measured,  or  examined.  As  the  act 
of  Parliament  expressly  makes  the  acceptance  and  actual 
receipt  of  any  part  of  the  goods  sold  sufficient,  it  must  be 
open  to  the  buyer  to  object,  at  all  events,  to  the  quantity  and 
quality  of  the  residue,  and,  even  where  there  is  a  sale  by 
sample,  that  the  residue  offered  does  not  correspond  with  the 
sample.  We  are,  therefore,  of  opinion  that,  whether  or  not 
a  delivery  of  the  goods  sold  to  a  carrier  or  any  agent  of  the 
buyer  is  sufficient,  still  there  may  be  an  acceptance  and 
receipt  within  the  meaning  of  the  act,  without  the  buyer  hav- 
ing examined  the  goods,  or  done  anything  to  preclude  him 
from  contending  that  they  do  not  correspond  with  the  con- 
tract. The  acceptance  to  let  in  parol  evidence  of  the  contract 
appears  to  us  to  be  a  different  acceptance  from  that  which 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  447 

affords  conclusive  evidence  of  the  contract  having  been  ful- 
filled." After  an  elaborate  review  of  the  cases  upon  which 
the  doctrine  he  contended  against  rested,  he  remarks  that  in 
the  case  before  him  the  buyer  specially  sent  his  carrier  to 
receive  the  wheat;  "after  the  delivery  of  the  wheat  to  his 
agent,  and  when  it  was  no  longer  in  the  possession  of  the 
vendor,  instead  of  rejecting  it,  as  in  the  other  cases,  he  exer- 
cised an  act  of  ownership  over  it  by  reselling  it  at  a  profit, 
and  altering  its  destination  by  sending  it  to  another  wharf, 
there  to  be  delivered  to  his  vendee.  The  wheat  was  then 
constructively  in  his  own  possession;  and  could  such  a  resale 
and  order  take  place  without  his  having  accepted  the  com- 
modity? Does  it  lie  in  his  mouth  to  say  that  he  has  not  ac- 
cepted that  which  he  has  resold  and  sent  on  to  be  delivered 
to  another?  At  any  rate,  is  not  this  evidence  from  which 
such  an  acceptance  and  receipt  may  be  inferred  by  the 
jury?  "  i 

§  328  a.  The  rule  laid  down  in  Morton  v.  Tibbett,  that  the 
act  of  acceptance  and  receipt  which  is  to  bind  the  bargain 
need  not  be  such  as  to  bar  the  buyer's  right  to  reject  the 
goods  afterwards  as  not  being  such  in  quantity  or  quality  as 
the  bargain  called  for,  has  been  asserted  and  applied  since 
in  the  Court  of  Appeal  in  the  cases  of  Kibble  v.  Gough,2  and 
Page  v.  Morgan.3  In  Kibble  v.  Gough,  the  defendant  agreed 
to  buy  of  the  plaintiff  a  quantity  of  barley  (an  undressed 
sample  being  exhibited  at  the  time)  at  a  named  price  per 
quarter,  on  condition  that  it  should  be  well  dressed.  The 
plaintiff  sent  in  an  instalment  of  the  barley,  which  was  re- 
ceived by  the  defendant's  foreman,  who  examined  it  and  re- 
turned a  receipt  with  the  words  "not  equal  to  sample."  The 
defendant  himself  examined  the  barley  next  morning,  and 
wrote  to  the  plaintiff  refusing  the  barley  as  being  not  well 
dressed.  The  plaintiff  having  obtained  a  verdict  for  the 

i  Morton  ».  Tibbett,  15  Q.  B.  428. 
8  38  Law  Times,  N.  a.  204. 
•  L.  R.  15,  Q.  B.  D.  228. 


448  STATUTE   OF   FRAUDS.  [CH.    XV. 

whole  price,  and  a  rule  for  a  new  trial  on  the  ground  of  erro- 
neous direction  to  the  jury  that  there  was  evidence  on  which 
they  might  find  acceptance  and  receipt  to  bind  the  bargain 
having  been  refused,  that  judgment  was  affirmed  by  the  Court 
of  Appeal ;  holding  that  the  examination  of  the  barley  to  see 
whether  it  was  well  dressed  was  an  act  recognizing  the  con- 
tract to  take  it  if  it  was  well  dressed.  In  Page  v.  Morgan 
there  was  a  sale  of  wheat  by  sample,  and  the  purchaser  hav- 
ing received  a  number  of  sacks  of  wheat  delivered  under  the 
contract  into  his  premises,  opened  the  sacks  and  examined 
their  contents  to  see  if  they  were  equal  to  sample,  and  imme- 
diately after  so  doing  gave  notice  to  the  seller  that  he  re- 
fused the  wheat  as  not  being  equal  to  sample.  Here  also  it 
was  held  (affirming  the  refusal  of  a  rule  for  new  trial)  that 
there  was  evidence  for  the  jury  of  acceptance  and  receipt  to 
bind  the  bargain ;  the  act  of  examination  to  see  if  the  goods 
were  according  to  sample  being  evidence  of  acceptance  and 
receipt  of  the  goods  as  delivered  under  a  contract  of  purchase 
and  sale. 

§  329.  It  will  be  observed  that  the  court  do  not  decide  in 
Morton  v.  Tibbett  that  the  receipt  of  the  goods  by  a  carrier  ap- 
pointed by  the  buyer  is  an  acceptance  and  receipt  by  the  buyer 
himself  so  as  to  make  the  purchase  binding  on  him,  and  that 
it  is  not  must  now  be  considered  settled  both  by  the  cases 
which  preceded  and  by  those  which  have  followed  the  case  now 
under  consideration.1  Lord  Campbell  simply  says  that  there 
may  be  acceptance  and  receipt  of  the  goods  sufficient  to  satisfy 
the  Statute  of  Frauds,  without  the  buyer's  having  precluded 
himself  from  "  contending  that  they  do  not  correspond  with 
the  contract."  The  case  before  him  comprised  an  act  on  the 
part  of  the  buyer  emphatically  and  unequivocally  asserting 
his  ownership  of  the  wheat,  namely,  his  reselling  it  at  a 
profit :  and  the  sum  of  the  decision  appears  to  be,  that  such 
an  act  deprives  the  buyer  of  that  locus  penitentice  which  would 
otherwise  be  allowed  him  between  the  delivery  to  the  carrier 

i  See  §  327  6,  supra. 


CH.    XV.]  ACCEPTANCE   AND   RECEIPT.  449 

and  inspection  by  himself;  in  the  same  way  as  we  have 
before  seen  that,  conversely,  acts  strongly  indicative  of  receipt 
will  be  deprived  of  their  effect  if  it  appear  that  the  seller 
has  not  intended  to  part  with  his  lien  upon  the  goods.  The 
correctness  of  the  decision,  therefore,  was  acknowledged  in 
the  subsequent  case  of  Hunt  v.  Hecht,  where  the  Court  of 
Exchequer,  nevertheless,  expressed  their  doubt  of  much  that 
fell  from  Lord  Campbell,  and  reasserted  the  rule,  as  correctly 
drawn  from  the  previous  authorities.1 

§  330.  The  observations  of  that  eminent  judge  are,  how- 
ever, full  of  consequence,  and  demand  of  us  a  careful  inquiry 
into  the  meaning  of  the  rule  that  the  buyer  will  not  be  held 
to  have  accepted  and  received  goods  until  he  has  exercised, 
or  has  had  an  opportunity  to  exercise,  his  option  to  return 
them.  And  it  seems  that  the  cases  commented  upon  by  Lord 
Campbell  do  not  go  so  far  as  to  hold  —  what  it  would  be  most 
difficult,  in  the  face  of  his  reasoning,  to  hold  —  that  the 
acceptance  by  the  purchaser  must  be  that  final  acceptance, 
which,  following  upon  the  receipt  and  inspection  of  the  goods, 
"  precludes  the  buyer  from  contending  that  they  do  not  corre- 
spond with  the  contract."  It  is  true  that  the  buyer  has  at 
common  law  the  privilege,  which  the  Statute  of  Frauds  has 
not  taken  away  from  him,  of  sending  back  the  goods  and 
resisting  suit  for  the  price,  if  they  do  not  turn  out  to  be  what 
they  were  represented ;  and  that  he  retains  this  privilege  even 
though  he  has  signed  a  written  memorandum  of  the  bargain, 
and  of  course  as  much  so  if  he  has  done  the  alternative,  ac- 
cepted and  received  the  goods;  consequently,  if  it  is  this 
privilege,  the  continuance  of  which  the  cases  in  question  as- 
sert to  be  incompatible  with  an  acceptance  and  receipt  within 
the  statute,  they  clearly  cannot  be  law.  But  in  those  cases, 
it  is  to  be  observed,  the  articles  were  bought  by  sample,  or 
merely  ordered  by  the  buyer,  and  he  had  no  opportunity  of 

1  Hunt  r.  Hecht,  8  Exch.  814.  See  Coombs  r.  Bristol  &  Exeter  Rail- 
way Co.,  3  Hurlst.  &  N.  510;  Simpson  v.  Krumdick,  28  Miun.  352;  Ro- 
man v.  Dressier,  32  Neb.  240. 

29 


450  STATUTE   OF   FRAUDS.  [CH.    XV. 

seeing  what  he  had  purchased.  And  the  rule  which,  when 
the  cases  are  examined  by  the  light  of  the  facts  involved, 
they  really  lay  down,  appears  to  be  simply  the  very  reason- 
able rule,  that,  where  the  goods  are  not  specified  or  ascer- 
tained at  the  time  of  making  the  sale,  the  buyer  cannot  be 
said  to  have  accepted  them  until  they  have  been  specified  or 
ascertained,  and  he  has  seen  them,  and  has  had  an  oppor- 
tunity of  judging  whether  they  are  the  goods  he  purchased. 1 
Even  this  privilege  he  may  waive,2  as  in  the  case  before 
Lord  Campbell,  by  a  resale  of  them,  or  any  other  act  distinctly 
and  unequivocally  asserting  ownership,  himself  taking  the 
risk  of  an  error  in  the  quantity  or  quality ;  but  in  the  absence 
of  such  act  concluding  him,  he  seems  clearly  to  retain  it. 
Indeed,  it  is  hard  to  see  how  he  can  accept  and  receive  what 
he  has  never  seen.3  The  distinction  suggested  is  between 
accepting  and  receiving  the  goods  as  those  which  he  pur- 
chased, and  accepting  them  as  satisfactory  so  as  to  preclude 
subsequent  objection  on  the  ground  of  concealed  defects ;  and 
it  seems  to  be  well  illustrated  in  the  late  case,  already  re- 
ferred to,  of  Hunt  v.  Hecht,  in  the  Court  of  Exchequer. 

§  331.  In  that  case,  one  of  the  defendants,  who  were  part- 
ners, called  upon  the  plaintiff,  a  bone  merchant,  for  the  pur- 
pose of  buying  bones.  He  there  saw  a  heap  containing  a 
quantity  of  the  kind  he  desired  to  buy,  but  intermixed  with 
others  which  were  unfit  for  manufacturing  purposes.  He 
ultimately  agreed  with  the  plaintiff  to  buy  the  heap  if  the 
objectionable  bones  were  taken  out.  It  was  arranged  between 
the  parties  that  the  plaintiff  should  deliver  the  bones  at  a 
certain  quay  in  sacks  marked  in  a  particular  way,  and  the 
defendants  then  sent  to  the  wharfingers  an  order  to  receive 
the  bones  and  ship  them  by  a  certain  lighter,  the  order  con- 
taining a  memorandum  that  the  wharf  charges  were  to  be 

1  Remick  ».  Sandford,  120  Mass.  309;  Stone  P.  Browning,  51  N.  Y. 
211. 

8  Mason  ».  Whitbeck  Co.,  35  Wise.  164. 
«  See  post,  §  336. 


CH.    XV.]  ACCEPTANCE  AND   RECEIPT.  451 

paid  by  them,  the  defendants.  The  bags,  marked  as  re- 
quested, were  received  by  the  wharfingers  on  the  day  named, 
but  the  defendants  did  not  hear  of  their  being  sent  until  the 
following  day,  when  the  invoice  was  received.  They  then 
examined  the  bones,  and  wrote  to  the  plaintiff  complaining 
of  their  quality  and  declining  to  accept  them.  The  jury 
found  that  the  plaintiff  had  sent  the  bones  of  the  description 
agreed  upon;  but  the  judge  (Martin,  B.)  ruled  at  the  trial 
that  there  was  no  acceptance  within  the  seventeenth  section, 
and  nonsuited  the  plaintiff.  A  rule  having  been  obtained  to 
set  aside  the  nonsuit,  and  enter  a  verdict  for  the  plaintiff, 
the  court  on  hearing  discharged  the  rule.  Pollock,  C.  B., 
said :  "I  am  of  opinion  on  the  facts  that  the  nonsuit  was 
right.  The  goods  were  received  by  the  person  appointed  by 
the  defendants,  but  they  were  not  at  any  time  accepted.  The 
defendants  never  saw  them  when  they  were  in  a  state  to  be 
accepted,  because  they  had  not  been  separated.  A  man  does 
not  accept  flour  by  looking  at  the  wheat  that  is  to  be  ground. " 
And  Martin,  B.,  said:  "The  contract  was  for  such  bones  in 
the  heap  as  were  ordinarily  merchantable,  and  they  were 
only  bound  to  accept  such  merchantable  bones.  Directions 
were  no  doubt  given  to  the  wharfinger  to  receive  the  bones, 
and  in  one  sense  they  were  received,  but  this  was  not  an 
acceptance  within  the  statute.  There  is  no  acceptance  unless 
the  purchaser  has  exercised  his  option,  or  has  done  some- 
thing that  has  deprived  him  of  his  option."1 

§  332.  As  was  before  remarked,  however,  there  may  be 
an  act  done  by  the  buyer,  pending  this  option,  so  decisive  of 
an  intention  to  be  bound  by  the  contract,  as  to  debar  him 
from  the  exercise  of  the  option  and  to  control  the  inference 
of  non-acceptance  arising  from  his  not  having  exercised  it; 
as,  for  instance,  reselling  the  goods  for  his  own  profit.  The 
execution  of  a  written  memorandum  in  the  interim  would  also 

1  Hunt  v.  Hecht,  22  L.  J.  Exch.  293.  See  also  what  was  said  by  Bol- 
land,  B.,  in  Jordan  v.  Norton,  4  Mees.  &  W.  155;  also  Gorham  v.  Fisher, 
30  Vt.  428;  Taylor  v.  Mueller,  30  Minn.  343. 


452  STATUTE   OF   FRAUDS.  [CH.    XV. 

certainly  be  such  an  act.  On  this  ground,  it  was  said  by 
Coleridge,  J.,  in  Bushel  v.  Wheeler,  that  it  was  not  a  fair 
test  that  the  buyer  could  not  be  held  to  have  accepted  the 
goods  so  long  as  the  seller's  right  to  stop  them  in  tramitu 
remained.1 

§  333.  But  the  locus  penitentice  of  the  buyer  remains  only 
until  he  has  exercised  his  option,  or  done  something  to  deprive 
himself  of  it.  He  may  deprive  himself  of  it,  not  only  by  an 
unequivocal  and  conclusive  course  of  conduct  affirming  the 
contract,  but  also  by  an  unreasonable  detention  of  the  goods 
after  they  have  come  under  his  control;  what  amounts  to 
such  a  detention  being,  in  each  case,  and  in  view  of  all  the 
circumstances,  a  question  for  the  jury.2  Such  appears  to  be 
the  clear  effect  of  the  modern  decisions,  though  the  rule  is 
applied  with  much  caution.  In  Bushel  v.  Wheeler,  to  which 
frequent  reference  has  been  made,  the  buyer  designated  the 
vessel  for  the  carriage  of  the  goods,  which  on  their  arrival 
were  placed  in  a  warehouse  belonging  to  the  owner  of  the 
vessel,  and  the  buyer  saw  them  there,  and  said  to  the  ware- 
houseman that  he  should  not  take  them,  but  did  not  com- 
municate this  refusal  to  the  seller  till  the  end  of  five  months. 
The  court  held  that  the  learned  judge  who  tried  the  case  had 
done  wrong  in  instructing  the  jury  that  there  had  been  no 
acceptance,  and  should  have  left  that  question  to  them  upon 
the  facts  in  the  case.3  In  Norman  v.  Phillips,  the  goods  were 
sent  by  a  particular  road  to  a  particular  station,  as  had  been 
the  course  of  dealing  between  the  parties,  and,  on  being, 
informed  by  the  railway  clerk  of  their  arrival,  the  buyer 

1  Bushel  v.  Wheeler,  15  Q.  B.  442,  note.     See  Borrowscale  v.  Bosworth, 
99  Mass.  378. 

2  Coleman  v.  Gibson,  1  Moo.  &  R.  168;  Percival  v.  Blake,  2  Carr.  & 
P.  514;  Curtis  v.  Pugh,  10  Q.  B.  Ill;    Bushel  v.  Wheeler,  15  Q.  B.  442, 
note;  Meredith  ».  Meigh,  2  El.  &  B.  364;  Cunliffe  v.  Harrison,  6  Exch. 
903;  Baylies  v.  Lundy,  4  L.  T.  N.  s.  176;  Cusack  v.  Robinson,  1  Best  & 
S.  299  ;  Castle  v.  Sworder,  6  Hurlst.  &  N.  828;  Borrowscale  v.  Bosworth, 
99  Mass.  378 ;  Spencer  v.  Hale,  30  Vt.  314.     See,  however,  Nicholle  v. 
Plume,  1  Carr.  &  P.  272. 

8  Bushel  v.  Wheeler,  15  Q,  B.  442,  note. 


CH.  XV.]          ACCEPTANCE  AND  RECEIPT.  453 

stated  to  him  that  he  would  not  take  them;  but  si.  weeks 
elapsed  before  he  communicated  this  refusal  to  the  seller. 
The  Court  of  Exchequer  held  that,  after  the  decision  in 
Bushel  v.  Wheeler,  it  was  impossible  to  say  that  there  was 
not  a  scintilla  of  evidence  of  acceptance  to  go  to  the  jury,  but 
that  there  was  not  enough  to  sustain  the  verdict  for  the 
plaintiff  below,  which  they  accordingly  set  aside.1  Whether 
the  pertinency  of  such  detention  to  the  question  of  acceptance 
arises  from  the  buyer's  being,  so  to  speak,  estopped  by  it,  or 
from  its  going  to  show  that  the  carrier  was  really  intended 
by  the  buyer  to  be  his  agent  for  accepting  and  receiving  the 
goods,  is  a  matter  upon  which  the  decisions  are  not  clear. 
Lord  Campbell,  in  Meredith  v.  Meigh,  seems  to  put  it  on  the 
latter  ground.2 

§  334.  The  statute  requires  proof  of  acceptance  and  actual 
receipt  of  a  part  only  of  the  goods,  and  whether  it  be  a  small 
part  or  a  large  part  is  immaterial.3  It  may  be  satisfied  by 
the  delivery  and  acceptance  of  a  sample;  provided  that  such 
sample  is,  by  the  terms  and  conditions  of  the  sale,  to  be 
treated  as  forming  a  part  of  the  goods,  which  has  been  sold 
and  delivered  and  accepted;  as,  for  instance,  when  the 
amount  of  the  sample  would  be  allowed  for  in  ascertaining 
the  total  of  the  amount  delivered.4  But  where  from  the  cir- 
cumstances of  the  bargain,  it  appears  that  the  taking  of 
samples  was  a  mere  act  of  examination,  and  that  what  was 
so  taken  was  not  taken  as  a  symbolical  acceptance  and  receipt 
of  any  part  of  the  goods  bargained  for,  it  would  not  satisfy 
the  statute.6 

1  Norman  ».  Phillips,  14  Mees   &  W.  277. 

2  Meredith  v.  Meigh,  2  El.  &  B.  364. 

8  Garfield  v.  Paris,  96  U.  S.  557;  Gilbert  ».  Lichtenberg,  98  Mich. 
417. 

«  Talver  v.  West,  Holt,  178;  Hinde  v.  Whitehouse,  7  East,  558; 
Klinitz  r.  Surry,  5  Esp.  267;  Gardner  v.  Grout,  2  C.  B.  N.  9.  340.  And 
Bee  Smith  »>.  Milliken,  7  Lans.  (N.  Y.)  336  ;  Brock  v.  Knower,  37  Hun 
(X.  Y.)  609. 

8  Carver  r.  Lane,  4  E.  D.  Sin.  (N.  Y.)  168;  Galvin  v.  MacKenzie,  21 
Oregon  181. 


454  STATUTE   OF   FRAUDS.  [CH.    XV. 

§  334  a.  And  since  the  language  of  the  statute  refers  to 
the  acceptance  and  receipt  of  a  part  of  the  goods  "  so  sold, " 
it  is  essential  that  the   proof  should  show  acceptance    and 
receipt  such  as  afford  evidence  of  recognition  by  the  parties 
of  the  contract  sued  upon,  and  of  acts  done  under  and  in  pur- 
suance of  that  contract.     Thus  in  a  case  in  Massachusetts, 
the  defendant  made  a  contract  on  a  Saturday  for  so  much 
leather,  out  of  a  lot  of  about  eight  hundred  sides,  as  was 
"  light  weight  "  leather.     After  he  had  left,  the  plaintiff,  the 
seller,  picked  out  the  "light  weight"  leather,   rolled  it  up 
and  set  it  aside,  and  a  part,  six  rolls  out  of  forty-four,  was 
that  afternoon  taken  by  an  expressman  to  the  town  where 
the  buyer  lived.     The  same  night  the  rest  of  the  leather  was 
burned  up.     On  the  Monday  following,  the  buyer  came  to  the 
seller's  store,   produced  the  bill  for  the  whole  lot,  and  re- 
quested the  seller's  book-keeper  to  take  off  from  it  so  much 
as  had  not  been  delivered,   which  was  done.     The  price  of 
the  amount  delivered  was  subsequently  tendered  and  refused. 
In  an  action  brought  for  the  whole  price,  the  seller  was 
allowed  to  recover  only  for  the  part  delivered,   and  it  was 
further  held  that  "  the  acceptance  by  the  buyer  on  Monday 
of  the  part  brought  by  the  expressman,  was  not  a  sufficient 
acceptance  to  take  the  sale  of  the  whole  out  of  the  statute, 
because  it  appears  that  it  was  not  with  an  intention  to  per- 
form the  whole  contract  and  to  assert  the  buyer's  ownership 
under  it,  but  on  the  contrary,  that  he  immediately  informed 
the  seller's  clerk  that  he  would  be  responsible  only  for  the 
part  received. "  ] 

§  334  5.  In  a  case  where  the  sale  of  goods  together  with 
other  matters,  such  as  the  performance  of  services,  constitute 
one  indivisible  contract,  it  will  not  be  sufficient  that  the 
services  have  been  performed,  and  the  benefit  of  them 
accepted  and  received.2 

1  Atherton  v.  Newhall,  123  Mass.  141.     See  Davis  v.  Eastman,  1  Allen 
(Mass.)  422;  Hausman  v.  Nye,  62  Ind.  485. 

2  Harman  v.  Reeve,  18  C.  B.  587. 


CH.    XV.]  ACCEPTANCE   AND   RECEIPT.  455 

§  335.  In  considering  the  question,  when  the  price  of  the 
goods  sold  is  to  be  held  to  amount  to  the  sum  fixed  by  the 
statute,  we  saw  that  the  prices  of  a  number  of  articles,  each 
less  than  that  sum,  but  in  the  aggregate  exceeding  it,  were 
to  be  taken  together,  so  -as  to  bring  the  contract  within  the 
statute,  if  the  purchases  were  all  made  at  the  same  time,  or 
so  connected  as  to  show  the  transaction  to  be  one  and  the 
same.  And  in  like  manner,  the  acceptance  and  receipt  of 
one,  or  part  of  one,  of  such  parcels  in  a  combined  purchase 
is  sufficient  to  perfect  the  contract  as  to  the  whole.  It  may 
often  be  a  matter  of  some  difficulty  to  determine  whether  the 
transaction  was  one  and  the  same.  In  the  common  case  of  a 
number  of  articles  purchased  at  private  sale,  of  a  shopman 
for  instance,  at  the  same  time  though  at  separate  prices,  it  is 
clear  that  the  aggregate  is  generally  to  be  taken  as  the  pur- 
chase.1 As  to  the  aggregate  of  various  purchases  made  by  a 
party  in  the  course  of  an  auction,  there  is  a  difference  of 
opinion.  The  English  cases  hold  that  the  purchases  so  made 
are  to  be  regarded  as  separate  and  distinct ; 2  in  this  country, 
however,  the  same  rule  is  applied  as  in  the  case  of  purchases 
at  a  store,  even  though  the  auction  sale  continue  more  than 
one  day.3  The  same  rule  (regarding  the  purchases  in  the 
aggregate)  was  also  applied  by  an  English  court,  in  a  case 
where  the  parties  had  met  by  appointment  for  the  purchase 
of  timber,  and  had  proceeded  together  to  several  places  some 
miles  apart,  making  bargains  for  timber  at  each  place  at 

1  Baldey  v.  Parker,  2  Barn.  &  C.  37;  Elliott  p.  Thomas,  3  Mees.  &  W. 
170  (in  which  Hodgson  v.  Le  Bret,  1  Camp.  233,  so  far  as  it  is  opposed  to 
the  rule  stated  in  the  text,  was  declared  to   he  no  binding  authority) ; 
Scott  v.  Eastern  Counties  Railway  Co  ,  12  Mees.  &  \V.  33 ;    A  Hard  r. 
Greasert,  61  N.  Y.  1 ;  ante,  §  314.     And  see  Hart  v.  Mills,  15  Mees.  &  W' 
85;  Champion  v.  Short,  1  Camp.   53;  Bailey  v.  Sweeting,  9  C.  B.  N.  8. 
843;  Garfield  t>.  Paris,  96  U.  S.  557. 

2  Emmerson  v.  Heelis,  2  Taunt.  38.     See  per  Le  Blanc,  J.,  in  Rugg  t?. 
Minett,  11  East  218;  Franklyn  r.  Lamond,  4  C.  B.  637. 

8  Mills  v.  Hunt,  17  Wend'.  (N.  Y.)  333,  affirmed  on  error,  20  Wend. 
431;  Jenness  v.  Wendell,  51  N.  H.  63.  See  Coffman  v.  Hampton,  2 
Watts  &  S.  (Pa.)  377;  Tompkins  v.  Haas,  2  Pa.  St.  74. 


456  STATUTE   OF   FRAUDS.  [CH.    XV. 

separate  prices,  but  all  on  the  same  day.1  In  many  cases 
presenting  this  general  question,  there  will  be  found  some 
evidence,  such  as  the  fact  of  a  memorandum  or  bill  of  the 
whole  made  out  and  presented,  and  assented  to  by  the  buyer 
tending  to  show  that  the  parties  regarded  the  transaction  as 
one  and  entire.  Perhaps  as  safe  a  general  test  as  any  will 
be  to  see  whether  either  party  can  be  made  to  take  or  part 
with  any  less  than  the  whole  lot.  Where  the  defendant  gave 
the  plaintiff's  travelling  agent  a  positive  order  for  a  quantity 
of  cream  of  tartar,  and  offered  to  take  a  quantity  of  lac  dye 
at  a  certain  price,  which  the  agent  said  was  too  low,  but 
agreed  to  write  to  his  principals,  and  that  if  the  defendant 
did  not  hear  from  them  in  one  or  two  days  he  might  consider 
that  his  offer  was  accepted,  and  the  principals  never  wrote  to 
the  defendant,  but  sent  all  the  goods;  it  was  held  by  the 
Court  of  Queen's  Bench  that  this  was  not  a  joint  order  for 
them  all,  so  as  to  make  the  acceptance  of  the  cream  of  tartar 
the  acceptance  of  the  lac  dye  also,  and  render  the  defendant 
liable  for  refusing  to  accept  the  latter.2 

§  336.  The  Court  of  Exchequer  have  determined  an  inter- 
esting point,  and  one  not  unlikely  to  be  of  frequent  recur- 
rence, touching  the  combined  effect  of  the  Statute  of  Charles 
and  of  Lord  Tenterden's  Act,  so  called  (which  it  will  be 
remembered  concerns  contracts  for  unmanufactured  or  unfin- 
ished goods),  as  regards  this  matter  of  accepting  one  of  a  lot 
of  articles.  The  defendants  ordered  of  the  plaintiffs  certain 
lamps,  some  of  which  were  ready  made,  and  one  was  to  be 
made  to  order;  the  former  were  afterwards  delivered  and 
paid  for,  and  the  question  was  whether  the  defendants  were 
thereby  bound  for  the  whole.  Lord  Abinger,  C.  B.,  said  that 
the  "  two  statutes  must  be  construed  as  incorporated  together, 
and  then  it  is  plain  that  where  an  order  for  goods  made  and 
for  others  to  be  made  forms  one  entire  contract,  acceptance 
of  the  former  goods  will  take  the  case  out  of  the  statutes  as 

1  Bigg  v.  Whisking.  14  C.  B.  195. 
8  Price  i'.  Lea,  1  Barn.  &  C.  156. 


CH.    XV.]  ACCEPTANCE   AND   RECEIPT.  457 

regards  the  other  also;"  and  Alderson,  B.,  said:  "The 
articles  bargained  to  be  made  are  treated  for  this  purpose  as 
goods  actually  made,  although  they  are  not  in  existence  at 
the  time  of  the  agreement. "  1  Bearing  in  mind  that  the 
statute  requires  an  acceptance  and  receipt  of  a  part  only  of 
the  goods  sold,  the  decision  is  evidently  correct ;  and  in  this 
point  of  view,  it  seems  to  throw  some  further  light  upon  the 
question  discussed  in  a  former  section,  as  to  the  extent  to 
which  acceptance  sufficient  to  satisfy  the  statute  precludes 
the  subsequent  refusal  to  accept,  and  the  return  of  any  part 
of  the  goods  as  not  answering  the  demands  of  the  contract. 
In  the  case  under  discussion  all  of  the  lamps  were  delivered 
and  paid  for  shortly  after  the  contract  was  made,  except  one 
lamp  of  peculiar  form,  which  at  the  time  of  the  delivery  of 
the  rest  was  not  in  existence,  and  which  was  not  in  fact  com- 
pleted till  two  years  afterward.  The  decision  was  that,  by 
an  acceptance  and  receipt  of  a  part,  the  contract  as  a  whole 
was  freed  from  the  application  of  the  statute.  It  was  not 
decided,  nor  could  it  well  be  maintained,  that  the  buyer  had, 
at  any  time  before  the  triangular  lamp  was  made  and  shown 
to  him,  ever  done  anything  whatever  to  preclude  him  from 
examining  that  lamp  when  finished,  and  rejecting  it  if  it  was 
not  what  it  was  promised  to  be.  Thus  it  is  seen  that  while 
the  acceptance  of  goods  may  preclude  the  subsequent  rejec- 
tion of  those  same  goods,  it  does  not  relate  to  or  concern  the 
other  goods  which  have  not  been  examined,  although  they 
are  to  be  made  and  delivered  under  the  same  contract.2  In 
connection  with  this  point  of  the  acceptance  of  one  of  a 
number  of  articles  not  all  ready  for  delivery,  it  may  be  proper 

1  Scott  v.  Eastern  Counties  Railway  Co.,  12  Mees.  &  W.  83;   Van 
Woert  v.  Albany  &  Susquehanna  R.  R.  Co.,  67  N.  Y.  538;  Kaufman  t>. 
Farley  Mfg.  Co.,  78  Towa  679. 

2  Some  cases  which  may  create  embarrassment  may  be  here  referred 
to;  e.  g.  Riisg  u.  Minett,  11  East  210;  Rohde  v.  Thwaites,  6  Barn.  &  C. 
888;  Lopan  v.  Le  Meander,  6  Moo.  P.  C.  116.    The  two  former,  however, 
were  determined  before  the  passage  of  Lord  Tenterden's  Act ;  and  the 
latter  was  determined,  the  report  weems  to  show,  upon  the  old  French  law 
prevailing  in  Lower  Canada. 


458  STATUTE   OF  FEAUDS.  [CH.   XV. 

to  refer  to  the  case  of  goods  owned  by  two  or  more  persons 
in  severalty ;  it  has  been  held  that  if  all  the  owners  together 
make  sale  of  the  goods,  a  delivery  and  acceptance  of  part  of 
one  parcel  is  sufficient  as  to  the  whole.1  And  acceptance  and 
receipt  by  one  of  several  joint  purchasers  will,  it  is  said, 
bind  the  bargain  against  all.2 

§  337.  We  next  come  to  the  question,  when  the  acceptance 
and  receipt  may  take  place ;  and  this,  it  seems,  may  be  con- 
temporaneous with  or  at  any  time  subsequent  to  the  making 
of  the  verbal  agreement.3  The  grounds  upon  which  this  rule 
rests  are  presented  with  such  clearness  in  an  opinion  of 
the  Supreme  Court  of  Massachusetts,  delivered  by  Bigelow, 
J.,  as  to  justify  an  extended  quotation.  "There  is  nothing 
in  the  statute,  which  fixes  or  limits  the  time  within  which  a 
purchaser  is  to  accept  and  receive  part  of  the  goods  sold,  or 
give  something  in  earnest  to  bind  the  bargain,  or  in  part- 
payment.  It  would  fully  satisfy  its  terms  if  the  delivery  or 
part-payment  were  made  in  pursuance  of  a  contract  previ- 
ously entered  into.  .  .  .  The  great  purpose  of  the  enact- 
ments, commonly  known  as  the  Statute  of  Frauds,  is  to  guard 
against  the  commission  of  perjury  in  the  proof  of  certain 
contracts.  This  is  effected  by  providing  that  mere  parol 
proof  of  such  contracts  shall  be  insufficient  to  establish  them 
in  a  court  of  justice.  In  regard  to  contracts  for  sales  of 
goods,  one  mode  of  proof  which  the  statute  adopts  to  secure 
this  object  is  the  delivery  of  part  of  the  goods  sold.  But  this 
provision  does  not  effectually  prevent  the  commission  of  per- 
jury ;  it  only  renders  it  less  probable,  by  rendering  proof  in 
support  of  the  contract  more  difficult.  So  in  regard  to  other 

1  Field  v.  Runk,  22  N.  J.  L.  525. 

2  Smith  v.  Milliken,  7  Lans.  (N.  Y.)  336.     See  Wilkinson's  Adminis- 
trator v.  Wilkinson,  61  Vt.  409. 

8  Walker  v.  Nussey,  16  Mees.  &  W.  302;  Field  v.  Runk,  22  N".  J.  L. 
525;  McKnight  v.  Dunlop,  5  N.  Y.  537;  Davis  v.  Moore,  13  Me.  424; 
Sprague  v.  Blake,  20  Wend.  (N.  Y.)  61  ;  Buckingham  v.  Osborne,  44 
Conn.  133.  See  Whitwell  v.  Wyer,  11  Mass.  6;  Damon  v.  Osborne,  1 
Pick.  (Mass.)  476;  Dehority  r.  Paxson,  97  Ind.  253;  Ortloff  v.  Klitzke, 
43  Minn.  154;  Coffin  v.  Bradbury,  35  Pac.  Rep.  (Idaho)  715. 


CH.   XV.]  ACCEPTANCE   AND   RECEIPT.  459 

provisions  of  the  same  statute;  perjury  is  not  entirely  pre- 
vented by  them;  the  handwriting  of  the  party  to  be  charged, 
or  the  agency  of  the  person  acting  in  his  behalf,  may  still 
be  proved  by  the  testimony  of  witnesses  who  swear  falsely. 
Absolute  prevention  of  perjury  is  not  possible.  In  carrying 
this  great  purpose  of  the  statute  into  practical  operation,  it 
can  add  no  security  against  the  danger  of  perjury,  that  the 
act,  proof  of  which  is  necessary  to  render  a  contract  opera- 
tive, is  not  contemporaneous  with  the  verbal  agreement.  A 
memorandum  in  writing  will  be  as  effectual  against  perjury, 
although  signed  subsequently  to  the  making  of  a  verbal  con- 
tract, as  if  it  had  been  executed  at  the  moment  when  the 
parties  consummated  their  agreement  by  word  of  mouth.  So 
proof  of  the  delivery  of  goods,  in  pursuance  of  an  agreement 
for  their  sale  previously  made,  will  be  as  efficacious  to  secure 
parties  against  false  swearing,  as  if  the  delivery  had  accom- 
panied the  verbal  contract.  It  is  the  fact  of  delivery  under 
and  in  pursuance  of  an  agreement  of  sale,  not  the  time  when 
the  delivery  is  made,  that  the  statute  renders  essential  to  the 
proof  of  a  valid  contract.  It  is  to  be  borne  in  mind  that,  in 
all  cases  where  there  is  no  memorandum  or  note  in  writing 
of  the  bargain,  the  verbal  agreement  of  the  parties  must  be 
proved.  The  statute  does  not  prohibit  verbal  contracts.  On 
the  contrary,  it  presupposes  that  the  terms  of  the  contract 
rest  in  parol  proof,  and  only  requires,  in  addition  to  the  proof 
of  such  verbal  agreement,  evidence  of  a  delivery  or  part-pay- 
ment under  it.  It  does  not  therefore  change  the  nature  of 
the  evidence  to  be  offered  in  support  of  the  contract.  It 
merely  renders  it  necessary  for  the  party  claiming  under  it 
to  show  an  additional  fact  in  order  to  make  it  '  good  and 
valid.'  ...  In  all  cases  like  the  present,  a  single  inquiry 
operates  as  a  test  by  which  to  ascertain  whether  a  con- 
tract is  binding  upon  the  parties  under  the  Statute  of 
Frauds.  It  is  whether  the  delivery  and  acceptance,  when- 
ever they  took  place,  were  in  pursuance  of  a  previous  agree- 
ment. If  the  verbal  contract  is  proved,  and  a  delivery  in 


460  STATUTE    OF   FEAUDS.  [CH.    XV. 

pursuance  of  it  is  shown,  the  requisites  of  tho  statute  are 
fulfilled."1 

§  338.  The  acceptance  and  the  receipt  may  take  place  at 
different  times,  and  either  may  precede  or  follow  the  other. 
In  the  case  of  a  sale  of  specific  ascertained  chattels,  the 
acceptance  is  generally  shown  at  the  time  when  the  sale  is 
made,  while  the  delivery  and  receipt  is  often  at  some  subse- 
quent time.  On  the  other  hand,  in  the  case  of  goods  not 
ascertained  at  the  time  of  sale,  but  subsequently  selected  or 
finished  by  the  seller  and  forwarded  to  the  buyer,  the  latter's 
acceptance  is  usually  made  after  the  goods  are  thus  delivered 
to  and  received  by  him.2  It  was  suggested  by  Chief  Justice 
Tindal  on  one  occasion,  that  acceptance  and  receipt  after 
action  brought  might  be  sufficient.3  He  had  no  occasion  to 
decide  the  point,  however,  and  it  is  quite  clear  by  the  author- 
ities, upon  an  analogous  question  in  regard  to  the  written 
memorandum,4  as  well  as  upon  the  language  of  the  section, 
that  such  an  acceptance  and  receipt  would  not  answer. 
Should  the  plaintiff  sue  upon  a  contract  within  the  statute, 
and  the  defendant  choose  to  avail  himself  of  that  defence, 
this  would  obviously  bar  the  plaintiff's  right  of  action,  and 
subsequent  acceptance  and  receipt  would  not  be  material. 

§  339.  It  is  a  very  material  question,  what  is  the  date  of 
the  contract,  when  a  verbal  agreement  is  thus  made  perfect  by 
a  subsequent  acceptance  and  receipt ;  the  date  of  the  accept- 
ance and  receipt,  or  that  of  the  original  agreement,  both  of 
which  go  to  compose  the  complete  and  binding  contract  ?  On 
the  one  hand,  we  may  say,  the  terms  of  the  contract  are  in 
the  first  instance  agreed  upon,  and  would  be  binding  but  for 

1  Marsh  v.  Hyde,  3  Gray  331.    See  Townsend  v.  Hargraves,  118  Mass. 
336;  also  Sale  v.   Darragh,  2  Hilton  (N.  Y.)  184;  Chapin  v.  Potter,  1 
Hilton  (N.  Y.)  366.    But  that  the  acceptance  and  receipt  should  be  before 
action  brought,  see  the  next  section. 

2  Garfield  v.  Paris,  96  U.   S.   557 ;  Cusack  v.  Robinson,  1  Best  &  S. 
299;  Jamison  v.  Simon,  68  Cal.  17. 

8  Fricker  v.  Thomlinson,  1  Man.  &  G.  772. 
4  Post,  §  352  a. 


CH.  XV.]         ACCEPTANCE  AND  RECEIPT.  461 

a  difficulty  which  the  subsequent  acceptance  removes,  and 
thus  establishes  the  contract  ab  initio ;  on  the  other  hand, 
we  may  say,  the  acceptance  is  all  that  gives  the  parties  any 
rights,  and  it  does  so  by  drawing  to  itself  the  original  agree- 
ment, which  then,  and  of  that  date,  becomes  binding  in  law. 
Suppose  a  damage  occur  to  the  goods  in  the  meanwhile, 
shall  the  purchaser  pay  the  full  value  ?  It  will  be  seen  that 
this  question  is  one  of  a  class,  the  treatment  of  which  involves 
a  full  discussion  of  the  effect  of  the  Statute  of  Frauds  upon 
the  nature  and  validity  of  the  oral  contract,  for  which  the 
reader  is  referred  to  a  previous  chapter.1 

§  340.  It  is  hardly  necessary  to  remark,  in  conclusion  of 
this  part  of  our  subject,  that  an  acceptance  or  receipt  once 
intelligently  made  cannot  be  afterward  revoked,  and  its  effect 
avoided.2 

1  Chapter  VIII.,  §§  138  rf-138/. 

2  Jackson  v.  Watts,  1  McCord  (S.  C.)  Law  288.    See  Buckingham  v. 
Osborue,  44  Conn.  133. 


462  STATUTE  OF  FRAUDS.  [CH.  XVL 


CHAPTER  XVI. 

EARNEST   AND    PART-PAYMENT. 

§  341.  BESIDES  the  acceptance  and  receipt  of  part  of  the 
goods  sold,  the  statute  provides  that  the  giving  of  something 
in  earnest  or  in  part-payment  of  the  price  shall  also  have  the 
effect  of  perfecting  the  contract  and  making  it  binding  upon 
the  parties.  The  giving  of  earnest,  for  the  purpose  of  bind- 
ing a  bargain,  was  recognized  at  common  law,  and  the  statute 
simply  permits  it  as  still  valid  for  that  purpose,  though  the 
bargain  be  by  word  of  mouth.1  As  at  common  law,  however, 
so  under  the  statute,  its  only  effect  is  to  make  the  bargain 
obligatory  and  to  give  the  buyer  a  right  to  demand  the  goods 
on  payment  of  the  price.2  It  seems  to  be  agreed  that  the 
earnest  must  be  money  or  money's  worth,  —  in  other  words, 
something  of  value,  though  the  amount  be  immaterial.3  And 
it  must  be  actually  paid ;  merely  giving  it  and  then  taking  it 
back  again,  or  "crossing  the  hand  "  with  it  will  not  suffice.4 

§  342.  What  shall  amount  to  part-payment  of  the  price 
seems  to  be  a  question  not  altogether  free  from  difficulty.  In 
a  case  of  much  authority  in  New  York,  the  defendant  owed 
a  sum  of  money  to  a  third  party,  who  owed  the  plaintiff  a 
larger  sum  upon  a  promissory  note,  and  all  three  agreed  that 
the  defendant  should  pay  to  the  plaintiff  directly  the  amount 
which  he  owed  to  the  third  party,  and  that  the  plaintiff 

1  See  Glanvil,  Chapter  xiv.,  an  interesting  reference  to  show  how 
closely  the  seventeenth  section  of  the  statute  pursues  the  rules  of  the 
common  law. 

8  Langfort  v.  Tiler,  1  Salk.  113;  2  Bl.  Com.  447;  2  Kent,  Com.  389. 

8  Artcher  v.  Zeh,  5  Hill  (N.  Y.)  200;  Kuhns  v.  Gates,  92  Ind.  66; 
Weir  v.  Hudnut,  115  Tnd.  525. 

4  Blenkinsop  v.  Clayton,  7  Taunt.  597.  And  see  Hudnut  ».  Weir,  100 
Ind.  501. 


CH.   XVI.]  EARNEST  AND   PAET-PAYMENT.  463 

should  credit  the  amount' on  the  third  party's  note  held  by 
him;  the  agreement  was  entirely  oral,  and  the  Statute  of 
Frauds  of  New  York,  extending  to  the  sale  of  choses  in  action 
as  well  as  goods,  was  relied  upon  in  defence  to  the  plaintiff's 
claim.  On  error,  it  was  contended  that  here  was  something 
equivalent  to  part-payment  of  the  money,  because  the  terms 
of  the  agreement  were  such  as  to  extinguish,  pro  tanto,  the 
debt  due  from  the  third  party  to  the  defendant;  in  other 
words,  that  the  transfer  was  accepted  as  a  payment,  and  per  se 
worked  a  satisfaction.  But  the  court  held  that,  even  if  there 
had  appeared  to  be  an  express  agreement  between  the  third 
party  and  the  defendant  that  the  latter  would  absolutely 
credit  the  amount  on  the  former's  note  (whereas  it  was  not 
clear  but  that  it  was  conditional  on  his  finally  recovering  the 
whole  amount  from  the  plaintiff),  still  it  was  not  sufficient 
to  take  the  contract  out  of  the  statute,  because  no  indorse- 
ment or  receipt  was  ever  actually  made.  Cowen,  J.,  speak- 
ing for  the  court,  said  the  object  of  the  statute  "was  to  have 
something  pass  between  the  parties  besides  mere  words; 
some  symbol  like  earnest  money.  Here  everything  lies  in 
parol."1 

§  342  a.  The  principle  of  this  decision,  that  the  mere 
agreement  to  pay  or  credit  a  sum  of  money  without  actual 
payment  or  crediting  is  not  sufficient  to  satisfy  the  Statute 
of  Frauds,  has  been  affirmed  in  New  York,  and  seems  to  be 
entirely  conformed  to  the  spirit  and  policy  of  the  statute.2 

1  Artcher  v.  Zeh,  5  Hill  (N.  Y.)  205;  Brabin  r.  Hyde,  32  N.  Y.  519. 
That  the  note  of  a  third  person  given  as  payment  will  take  a  bargain  for 
goods  out  of  the  statute  is  clear.     See  Combs  v.   Bateman,  10  Barb. 
(N.  Y.)  573.     Also  the  check  of  the  purchaser.     Hunter  v.  Wetsell,  84 
N.  Y.  549  ;  Hunter  ».  Wetsell,  17  Hun  (N.  Y.)  133.     Quaere,  how  it  may 
be  in  Massachusetts  as   to    the  purchaser's    own  note,  which   is  there 
regarded  as  payment  if  given  with  that  intention.     In  Sharp  v.  Carroll, 
66  Wise.  62,  it  was  held  that  the  actual  surrender  of  a  note  of  the  vendor 
by  the  vendee,  as  part  of  the  purchase  money  for  goods  bought,  was  part 
payment  to  satisfy  the  statute  of  frauds.     See  also  Krohn  v.  Brantz,  68 
Ind.  277. 

2  Ely  v.  Ormsby,  12  Barb.  570;  Brand  i<.  Brand,  49  Barb.  346;  Brabin 
v.  Hyde,  32  N.  Y.  519;  Teed  v.  Teed,  44  Barb.  96;  Walrath  v.  Richie,  5 


464  STATUTE   OF  FKAUDS.  [CH.   XVI. 

In  a  case  which  came  before  the  Court  of  Exchequer,  the 
plaintiff,  then  owing  the  defendant  four  pounds  and  odd,  sold 
him  a  lot  of  leather,  the  price  of  which  exceeded  ten  pounds, 
and  agreed  that  the  defendant  might  deduct  or  set  off  from 
the  payment  to  be  made  for  the  leather  the  amount  already 
owing  to  him  by  the  plaintiff.  The  defendant  returned  the 
leather  as  inferior  to  the  sample,  and  demanded  the  money 
previously  due  him,  on  which  the  plaintiff  brought  his  action 
for  the  agreed  price  of  the  leather,  less  the  old  debt,  insist- 
ing that  the  agreement  as  to  the  allowance  of  the  old  debt, 
on  the  price  of  the  leather,  was  a  part-payment  of  such  price 
and  took  the  bargain  out  of  the  statute.  All  the  Barons 
agreed  that  it  could  not  be  so  regarded,  because  such  agree- 
ment was  part  of  the  bargain  for  the  leather ;  such  bargain 
being  to  buy  the  leather  at  a  certain  price,  less  the  old  debt; 
and  so  denied  the  motion  for  a  new  trial.  But  it  was  said 
that  if  the  defendant  had  agreed  to  extinguish  the  old  debt, 
and  receive  the  plaintiff's  goods  pro  tanto  instead  of  it,  the 
law  might  have  been  satisfied  without  the  ceremony  of  paying 
to  the  defendant  and  repaying  it  by  him.1  The  decision, 
however,  went  upon  the  ground,  clearly  presented  by  the 
case,  that  the  agreement  was  that  the  defendant,  when  he 
paid  for  the  goods,  and  if  he  paid,  might  deduct  the  old 
debt;  thus  evidently  leaving  that  deduction  contingent,  some- 
what as  in  the  New  York  case  above  quoted.  So  far  as  the 
suggestions  of  the  Barons  on  the  other  point  are  concerned, 
they  seem  to  involve  a  little  difficulty.  Doubtless,  if  the 
parties  to  the  suit  had  been  changed,  the  defendant  suing  the 
plaintiff  for  the  four  pounds  and  odd,  the  latter  could  have 

Lans.  362.  See  Mattice  v.  Allen,  3  Abb.  App.  Dec.  248;  Gilman  v.  Hill, 
36  N.  H.  311;  Gaddis  v.  Leeson,  55  111.  83;  Matthiessen  &  Weichers  Re- 
fining Co.  v.  McMahon,  38  N.  J.  L.  536.  The  question  is  one  of  fact,  viz., 
whether  there  was  any  actual  transfer  of  money  or  money's  worth  from 
the  buyer  to  the  seller,  made  in  pursuance  of  the  agreement.  See  Dow 
v.  Worthen,  37  Vt.  108;  Cotterill  v.  Stevens,  10  Wise.  422;  Organs 
Stewart,  60  N.  Y.  413,  Walrath  v.  Ingles,  64  Barb.  (N.  Y.)  265. 
1  Walker  v.  Nussey,  16  Mees.  &  W.  302. 


CH.   XVI.]  EARNEST   AND   PART-PAYMENT.  465 

defended  on  showing  that  he  had  paid  the  debt  in  leather ; 
but  suppose  the  bargain  of  the  leather  had  been  wholly  fixed 
by  the  parties,  and  afterwards  they  had  agreed  that  the  old 
debt  might  be  waived  or  released  by  way  of  part-payment ; 
would  that  have  been  sufficient,  without  any  receipt  or  other 
act  showing  the  release? 

§  342  b.  The  mere  tender  of  earnest  will  not  be  sufficient ; 
it  must  be  taken  by  the  seller  as  well.  And  so  it  was  held 
that,  where  the  buyer  had  sent  by  mail  to  the  seller  a  sum 
of  money  to  bind  the  bargain,  the  latter  was  at  liberty,  upon 
receipt  of  the  money,  to  keep  it  as  earnest,  and  thereby  make 
a  binding  contract,  or  to  return  it  to  the  sender  and  refuse 
to  carry  out  his  parol  agreement.1  Nor  will  a  deposit  with 
a  third  person,  who  is  to  hand  it  to  either  of  the  parties,  if 
the  other  neglect  or  refuse  to  fulfil  his  part  of  the  bargain, 
be  a  sufficient  giving  of  earnest.2 

§  343.  We  have  seen  that  the  acceptance  and  receipt  of 
part  of  the  goods  may  be  subsequent  to  the  making  of  the 
oral  bargain,  but  that  they  should  be  before  action  brought. 
The  same  cases  and  the  same  reasoning  seem  to  apply  so 
clearly  to  a  part-payment  also,  that  it  is  not  considered 
necessary  to  refer  to  them  here.3 

1  Edeerton  v.  Hodge,  41  Vt.  676. 

2  Howe  v.  Hayward,  108  Mass.  54 ;  Noakes  v.  Morey,  30  Ind.  103. 

«  Ante,  §§  337,  338.  And  see  Thompson  v.  Alger,  12  Met.  (Mass.) 
428.  The  language  of  the  New  York  statute  is  "  unless  the  buyer  shall, 
at  the  time,  pay  some  part  of  the  purchase  money  "  This  provision  was 
regarded  as  satisfied  in  Bissell  r.  Balcom,  39  N.  Y.  275,  by  payment  made 
a  day  or  two  after  the  day  of  the  agreement.  And  in  Hunter  r.  Wetsell, 
4  N.  Y.  549,  by  a  check  delivered  and  received  as  payment  "  at  the 
time,"  such  check  being  good  when  drawn  and  afterwards  paid  on  pre- 
sentation. But  from  the  language  of  later  decisions,  it  would  seem  that, 
where  payment  is  relied  upon  to  take  the  case  out  of  the  statute,  the  con- 
tract must  be  substantially  repeated  and  made  anew  by  the  parties  when 
the  payment  is  made.  See  Webster  r.  Zielly,  52  Barb.  (X.  5f.)  482; 
Hunter  r.  Wetsell,  57  N.  Y.  375;  Hunter  ».  Wetsell,  17  Hun  (N.  Y.)  133. 
See  also  Bates  r.  Chesebro,  32  Wise.  594 ;  same  case,  on  new  trial,  30 
Wise.  636;  Paine  r.  Fulton,  31  Wise.  83;  Jackson  r.  Tupper,  101  N.  Y. 
515;  Hallenbeck  v.  Cochran,  20  Hun  (N".  Y.)  416. 

30 


466  STATUTE   OF  FRAUDS.  [CH.   XVII. 


CHAPTER  XVII. 

THE   FORM,    ETC.,    OF   THE   MEMORANDUM. 

§  344.  IN  considering  the  subject  of  writings  and  written 
evidence  satisfying  the  statute,  it  is  important  to  notice 
carefully  the  language  of  the  statute  in  regard  to  them. 
The  first  section  provides  that  the  creation  of  "  leases,  estates, 
interests  of  freehold,  or  terms  of  years, "  must  be  by  an  instru- 
ment in  writing;  and  the  third  section  contains  a  similar 
provision  as  to  the  transfer  of  such  interests  after  they  have 
been  created.  The  fourth  section,  concerning  the  agreement 
to  create  or  transfer  such  interests,  declares  that  such  agree- 
ments, among  others,  shall  not  be  enforceable  unless  they 
have  been  reduced  to  writing,  or  (if  this  has  not  been  done), 
unless  some  note  or  memorandum  in  writing  of  them  is 
produced,  authenticated  by  the  signature  of  the  party  to  be 
charged  upon  the  agreement.  The  seventeenth  section,  re- 
garding contracts  for  the  sale  of  goods,  contains  a  similar 
provision  as  to  the  note  or  memorandum.  The  language  of 
these  two  last  sections  clearly  indicates  a  difference  between 
a  contract  in  writing,  and  a  note  or  memorandum  in  writing 
of  an  oral  contract;  but  this  difference,  though  manifest, 
and  often  judicially  recognized  by  authority,1  has  not  always 

1  Per  Erie,  J.,  in  Parton  v.  Crofts,  33  L.  J.  C.  P.  189;  Barkworth  v. 
Young.  4  Drew.  1;  Hoar,  J.,  in  Lerned  v.  Wannemacher,  9  Allen  (Mass.) 
412;  Ide  v.  Stanton,  15  Vt.  685;  Batturs  v.  Sellers,  5  Harr.  &  J.  (Md.) 
117 ;  Lanz  v.  McLaughlin,  14  Minn  72  ;  Thayer  v.  Luce,  22  Ohio  St  62 ; 
Benziger  v.  Miller,  50  Ala.  206;  Mizell  r.  Burnett,  4  Jones  (N.  C.)  Law 
249 ;  Old  Colony  R.  R.  Co.  v.  Evans,  6  Gray  (Mass.)  25 ;  Kibby  v.  Chit- 
wood,  4  T.  B.  Mon.  (Ky.)  91;  Williams  v.  Bacon,  2  Gray  (Mass.)  387; 
Hart  v.  Carroll,  85  Pa.  St.  508;  Jones  v.  Victoria  Graving  Dock  Co.,  2 


CH.    XVII.]  THE    FORM,   ETC.,   OF   THE    MEMORANDUM.  467 

been  allowed  its  due  weight.  First,  it  is  important  to  bear 
in  mind  that  an  oral  contract  for  the  sale  of  lands  or  goods 
was  valid  before  the  passage  of  the  Statute  of  Frauds ;  next, 
that  the  statute  does  not  make  the  contract  void,  in  the  sense 
that  an  illegal  contract  is  void,  but  simply  makes  it  unen- 
forceable; and  lastly,  that  that  bar  is  removed  by  the  pro- 
duction of  a  writing  containing  the  terms  of  the  oral  contract 
and  authenticated  by  the  signature  of  the  party  to  be 
charged. 

§  344  a.  Tt  must  be  remembered,  too,  that  the  statute  con- 
cerns oral  contracts  only;  written  contracts,  of  whatever 
nature,  are  untouched  by  its  provisions.  The  rules  govern- 
ing their  interpretation  and  effect  are  of  course  unaffected  by 
the  fact  that,  if  the  contract  had  not  been  in  writing,  the 
Statute  of  Frauds  would  or  might  have  affected  it.  Being  a 
written  contract,  it  is  specially  excepted  by  the  statute  itself 
from  its  operation.  As  was  said  of  the  Statute  of  Frauds  by 
Lord  Redesdale,  "  it  does  not  say  that  a  written  agreement 
shall  bind,  but  that  an  unwritten  agreement  shall  not  bind."  l 
But  the  memorandum  or  note  of  such  an  unwritten  agree- 
ment, which,  under  the  statute,  gives  it  validity,  is  governed 
by  rules  in  many  respects  peculiar.  In  discussing  these,  it 
is  believed  expedient  to  examine,  first,  those  pertaining  to 
the  external  features  of  the  memorandum,  or  of  what  it  must 
consist;  and  secondly,  its  internal  features,  or  what  it  must 
contain. 

§  345.  The  fourth  section  of  the  statute  provides  that  no 
action  shall  be  brought  upon  any  of  the  classes  of  contracts 

Q.  B.  Div.  314;  Drury  v.  Young,  58  Md.  546;  Johnson  v.  Trinity  Church 
Society,  11  Allen  (Mass.)  123.  The  court  in  McAnnulty  ?».  Me  Annuity, 
120  111.  126,  appears  to  have  overlooked  or  disregarded  the  distinction 
between  the  contract  and  the  memorandum,  for  they  say  "the  statute 
requires  the  contract  itself  to  be  in  writing,"  and  hold  that  a  sufficient 
memorandum  in  writing  made  after  marriage  of  a  verbal  ante-nuptial 
contract  will  not  support  an  action  for  its  enforcement.  But  see  Lasher 
v.  Gardner,  124  Til.  441,  which  holds  that  "the  statute  does  not  require 
that  the  contract  itself  should  be  reduced  to  writing." 
1  Clinan  v.  Cooke,  1  Sch.  &  L.  39. 


468  STATUTE  OF  FRAUDS.  [CH.  XVII. 

there  enumerated,  "unless  the  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  there- 
of, shall  be  in  writing  and  signed  by  the  party  to  be  charged 
therewith,  or  some  person  thereunto  by  him  lawfully  author- 
ized." And  the  provision  in  regard  to  the  memorandum 
under  the  seventeenth  section,  relating  to  the  sales  of  goods, 
is  substantially  the  same,  except  in  the  use  of  the  plural, 
"  parties  to  be  charged. "  The  present  chapter  concerns  the 
different  kinds  of  writings  which  may  be  memoranda,  the 
incorporation  of  other  writings  by  reference,  the  signature, 
and  the  authority  to  affix  it ;  all  coming  under  the  general 
head  of  the  form  of  the  memorandum. 

§  345  a.  The  note  or  memorandum  of  the  oral  contract 
which  the  statute  requires  is  some  writing,  authenticated  by 
the  signature  of  the  party  to  be  charged  upon  the  contract, 
or  of  his  agent,  and  containing,  either  in  terms  or  by  incor- 
poration of  other  writing  referred  to  in  it,  a  statement  of  the 
terms  of  the  contract  and  the  parties  to  it.  The  writing,  it 
has  been  decided,  need  not  state  that  the  contract  has  been 
made,  or  afford  any  evidence  of  that  fact.  An  offer  or  pro- 
posal, signed  by  the  party  making  it,  and  communicated  to  the 
other  party,  is  held  a  sufficient  memorandum  to  support  an 
action  against  the  party  making  it  for  breach  of  the  contract 
afterward  made  by  the  oral  acceptance  of  the  offer;  the  fact 
of  such  acceptance  being  provable  by  oral  evidence.1 

1  Retiss  v.  Picksley,  L.  R.  1  Ex.  342 ;  Stewart  v.  Eddowes,  L.  R.  9 
C.  P.  311;  Sanborn  v.  Flagler,  9  Allen  (Mass.)  474;  Himrod  Furnace 
Co.  v.  Cleveland  &  Mahoning  R.  R.  Co.,  22  Ohio  St.  451 ;  Argus  Co.  v. 
Mayor,  etc.  of  Albany,  55  N.  Y.  495;  Griffin  v  Rembert,  2  S.  C.  410.  See 
Bird  v.  Blosse,  2  Ventris,  361  ;  Brettel  v.  Williams,  4  Exch.  623;  Waul  v. 
Kirkman,  27  Miss.  823;  Lanz  v.  McLaughlin,  14  Minn.  72;  Lowber  v. 
Connit,  36  Wise.  176 ;  Thayer  v.  Luce,  22  Ohio  St.  62  ;  Justice  v.  Lang, 
42  N.  Y.  493;  Western  Union  Tel.  Co.  v.  Chicago  &  Paducah  R.  R.  Co., 
80  Til.  246 ;  Kessler  v.  Smith,  42  Minn.  494 ;  Raubitschek  v.  Blank,  80 
N.  Y.  478;  Norton  v.  American  Ring  Co.,  1  Fed.  Rep.  684;  Lee  v. 
Cheney,  85  Tenn.  707;  Gradle  v.  Warner,  140  111.  123;  Doherty  r.  Hill, 
142  Mass.  465.  Where  a  written  offer,  expressly  limited  as  open  until 
a  certain  time,  was  not  accepted  until  after  that  time,  the  limit  having 
been  meanwhile  verbally  extended,  terrible  that  the  original  offer  in  writ- 


CH.   XVII.]  THE   FOKM,   ETC.,   OF   THE   MEMORANDUM.  469 

§  345  b.  Apart  from  authority,  and  upon  principle  merely, 
it  may  well  be  questioned  whether  an  offer  in  writing  made 
before  the  contract  can  be  evidence  of  the  contract  afterward 
made,  if  the  idea  of  admission  is  to  enter.1 

§  346.  The  writing  may  be  sufficient,  however  informal. 
A  letter,2  a  receipt  for  money,3  a  bill  of  parcels,4  or  a  stated 
account,  in  which  the  vendor  of  land  charges  himself  with 
the  price,6  or  the  return  of  a  sheriff  upon  an  execution,6  or  a 
vote  of  a  corporation  entered  on  their  records,  signed  by  their 
clerk,7  or  a  city  ordinance  appropriating  land  and  acted  upon 
by  defendant,8  may  be  a  sufficient  memorandum. 

§  346  a.  It  would  seem  that,  in  the  case  of  the  loss  or  non- 
production  of  the  writing  relied  upon  as  a  memorandum,  its 
contents  may,  like  those  of  any  other  writing,  be  sufficiently 
proved  by  secondary  evidence,  but  upon  this  the  decisions 
are  conflicting.9 

ing  would  not  be  a  good  memorandum  of  the  subsequent  oral  agree- 
ment. See  Atlee  v.  Bartholomew,  69  Wise.  43.  In  Banks  v.  Harris  Mfg. 
Co.,  20  Fed.  Rep.  667,  the  written  offer  was  not  accepted,  but  was  de- 
clined by  the  defendant.  See  Neville  v.  State,  73  Texas  629 ;  Hastings 
v.  Weber,  142  Mass.  232.  But  see  Cloud  v.  Greasley,  125  111.  313. 

1  Wardell  v.  Williams,  62  Mich.  50. 

»  Troy  Fertilizer  Co.  v.  Logan,  96  Ala.  619. 

8  Barickman  v.  Kuykeudall,  6  Blackf.  (Ind.)  21 ;  Ellis  v.  Deadman, 
4  Bibb  (Ky.)  466;  Evans  v.  Prothero,  1  De  G.,  M.  &  G.  572;  Williams  v. 
Morris,  95  U.  S.  444. 

4  Batturs  v.  Sellers,  5  Harr.  &  J.  (Md.)  117;  Saunderson  v.  Jackson. 
2  Bos.  &  P.  238;  Hawkins  v.  Chace,  19  Pick.  (Mass.)  502. 

6  Barry  v.  Coombe,  1  Pet.  (U.  S.)  640;  Bourland  v.  County  of  Peoria, 

16  111.  538. 

8  Hanson  v.  Barnes,  3  Gill  &  J.  (Md.)  359;  Fenwick  v.  Floyd,  1  Harr. 
&  G.  (Md.)  172;  Barney  v.  Patterson,  6  Harr.  &  J.  (Md.)  182;  Elfe  v. 
Gadsden,  2  Rich.  (S.  C.)  Law  373;  Nichol  v.  Ridley,  5  Yerg.  (Tenn.) 
63 ;  Stearns  v.  Edson,  63  Vt.  259. 

7  Tufts  v.  Plymouth  Gold  Mining  Co..  14   Allen  (Mass.)  407;  Johnson 
v.  Trinity  Ch.  Soc.,11  Allen  (Mass.)  123;  Chaser.  City  of  Lowell,  7  Gray 
(Mass.)  33:  Rhoades  t».  Castner,  12  Allen  (Mass.)  130;  Grimes  i\  Ham- 
ilton   County,  37  Towa  290 ;  Argus  Co.  v.  Albany,  55  N.   Y.  495.     See 
Caldwell  r.  School  City  of  Huntington,  132  Ind.  92;  Marden  v.  Champlin, 

17  R.  I.  423. 

8  District  of  Columbia  v.  Johnson,  1  McKay  51. 

»  See  Davis  v.  Robertson,  1  Mill  (S.  C.)  71;  Jelks  r.  Barrett,  52  Miss. 


470  STATUTE   OF  FKAUDS.  [CH.   XVII. 

§  346  b.  It  is  often  the  case  that  the  terms  of  the  contract 
are  not  all  contained  in  any  one  paper.  The  question  then 
arises,  under  what  circumstances  two  or  more  papers  can  be 
offered  in  evidence  as  together  constituting  the  memoran- 
dum, one  only  or  all  being  signed,  as  the  case  may  be.  With 
regard  to  the  first  case,  the  rule  is  that  the  letter  or  other 
paper  that  is  signed  is  to  be  regarded  as  incorporating  and 
reciting  any  other  writing  referred  to  in  it.  It  follows,  then, 
that  in  the  case  of  any  signed  paper,  those  writings  referred 
to  in  it  may  be  read,2  provided  they  were  in  existence  at  the 
time  when  the  paper  referring  to  them  was  signed.1  It 
seems  also  that  one  signature  may  apply  not  only  to  the 
paper  on  which  it  is  written,  but  also  to  another  which  at  the 
time  of  signing  was  attached  to  it  in  such  a  way  as  to  indi- 

315;  Pitts  v.  Beckett,  13  Mees.  &  W.  743;  Washburn  v.  Fletcher,  42 
Wise.  152  ;  Elwell  v.  Walker,  52  Iowa  256;  Roehl  v.  Haumesser,  114 
Ind.  311 ;  MaGee  v.  Blaukenship,  95  N.  C.  563;  White  v.  Bigelow,  154 
Mass.  593. 

1  Jackson  i>.  Lowe,  1  Bing.  9 ;  Dobell  v.  Hutchinson,  3  Ad.  &  E.  371 ; 
Laythoarp  ».  Bryant,  2  Bing.  N.  R.  735;  Scarlett  v.  Stein,  40  Md.  512; 
Tawney  v.   Crowther,  3  Bro.  C.  C.  318  ;  De  Beil  v.  Thompson,  3  Beav. 
469 ;  Coles  v.  Trecothick,  9  Ves.  234.     See  Peirce  v.  Corf,  L.  R.  9  Q  B. 
210;  Washington  Ice  Co.  v.  Webster,  62  Me.  341  ;  Mayer  v.  Adrian,  77 
N.  C.  83;  Williams  v.  Morris,  95  U.  S.  444;  Williams  v.  Jordan,  6  Ch. 
Div.  517;  Buxton  v.  Rust,  L.  R.  7  Exch.  279;  Rishton  v.  Whatmore,  8 
Ch.  Div.  467;  Hickey  v.  Dole,  29  Atl.  Rep.  (N.  H.)  792;  Wilson  ».  Lew- 
iston  Mill  Co.,  74  Hun   (N.  Y.)  612;  Rafferty  v.  Lougee,  63  N.   H.  54; 
Wylson  v.  Dunn,  L.  R.  34  Ch.  D.  569;  Cave  v.  Hastings,  L.  R.  7  Q  B.  D. 
125;  Oliver  v.  Alabama  Gold  Life  Insurance  Co.,  82  Ala.  417;  St.  Louis 
R.  R   Co.   v.  Beidler,  45  Ark.   17;  Christenson  v.  Wooley,  41  Mo.  App. 
53;  Williams  v.  Robinson,  73  Me.  186.     See  Coombs  v.  Wilkes,  L.  R.  3 
Ch.  D.  1391,77. 

2  Wood  v.  Midgeley,  5  De  G.,  M.  &  G.  41.     Compare  Ridgway  v. 
Wharton,  6  H.  L.  C.  238.     But  see  Briggs  v.  Munchon,  56  Mo.  467.    See 
also  Freeland  v.  Ritz,  154  Mass.  257,  holding  on  the  authority  of  Brown 
r.  Bellows,  4  Pick.  179,  that  it  is  no  objection  to  a  written  contract  that 
srmje  of  its  terms  are  to  be  fixed  by  something  to  be  done  in  the  future 
if  that  something  is  done  before  action  brought,  and  that,  if  it  is  in  writ- 
ing, the  provisions  of  the  Statute  of  Frauds  are  complied  with,"  and  dis- 
tinguishing Wood  v.  Midgeley.     See  §  373,  post,  Camp  v.  Moreman,  84 
Ky.  635. 


CH.    XVII.]  THE  FORM,   ETC.,   OF  THE   MEMORANDUM.  471 

cate  that  the  whole  was  intended  to  be  recognized  by  the 
signer  as  one  paper.1 

§  347.  Although  one  writing  refer  specifically  to  another, 
the  terms  of  the  intended  contract  may  still  be  left  in  doubt, 
and  the  requirement  of  the  statute  be  unsatisfied,  for  want  of 
certainty  in  the  writing  referred  to.  Thus,  in  the  case  of 
Brodie  v.  St.  Paul,  which  was  a  suit  in  equity  to  enforce  an 
agreement  to  execute  a  lease,  the  parties  had  signed  an 
agreement  referring  to  another  paper  as  containing  the  terms 
and  conditions;  but  this  paper  contained  other  terms  and 
conditions  besides  those  which  were  to  be  embraced  in  the 
proposed  lease,  the  latter  embracing  only  such  among  them 
as  the  defendant  had  on  the  previous  occasion  read  to  the 
plaintiff.  The  court  rejected  parol  testimony  to  show  what 
passages  had  been  so  read,  as  manifestly  against  the  Statute 
of  Frauds.2 

§  348.  Where  there  is  more  than  one  signed  paper,  so 
many  of  them  as  of  themselves  show  their  relation  to  the 
contract  sued  upon  may  be  taken  together  to  make  the  memo- 
randum.8 But  if  such  relation  does  not  appear  from  the 
writings  themselves,  it  cannot  be  established  by  extrinsic 
evidence.4  Boydell  v.  Drummond  is  a  conspicuous  case, 

Tallman  v.  Franklin,  14  N.  Y.  584.  See  Wilkinson  r.  Evans,  L.  R. 
1  C.  P.  407;  Ridgway  v.  Ingram,  50  Ind.  145;  Commins  v.  Scott,  L.  R. 
20  Eq.  11;  Kronheim  u.  Johnson,  7  Ch.  Div.  60;  Wilstach  v.  Heyd,  122 
Ind.  574 ;  Gordon  ».  Collett,  102  N.  C.  532. 

2  Brodie  ».  St.  Paul,  1  Ves.  Jr.  326.  See  Clinan  v.  Cooke,  1  Sch.  & 
L.  22. 

•  Wilkinson  r.  Evans,  L.  R.  1  C.  P.  407;  Lerned  v.  Wannemacher,  9 
Allen  (Mass.)  412;  Allen  v.  Bennet,  3  Taunt.  169;  Ide  r.  Stanton,  15  Vt. 
685 ;  Thayer  v.  Luce,  22  Ohio  St.  62  ;  Peabody  v.  Speyers,  56  N.  Y.  230; 
Work  v.  Cowhick,  81  111.  317;  Beckwith  v.  Taibot,  95  U.  S.  289;  Bnxton 
r.  Rust,  L.  R.  7  Exch.  279;  Evennan  v.  Herndon,  11  So.  Rep.  (Miss.) 
652;  Wills  v.  Ross,  77  Ind.  1;  Peck  v.  Vandemark,  99  N.  Y.  20;  Bayne 
v.  Wiggins,  139  U.  S.  210;  Shardlow  v.  Cotterell,  L.  R.  20  Ch.  D.  90  ; 
Studds  v  Watson,  L.  R.  28  Ch.  D.  305 ;  Beckwith  v.  Taibot,  2  Col.  639 ; 
Otis  v.  Payne,  86  Tenn.  663  ;  Barker  v.  Smith,  92  Mich.  336;  Mann  v. 
Higgins,  83  Cal.  66 ;  Elbert  ».  Los  Angeles  Gas  Co.,  97  Cal.  244. 

4  Jacob  »'.  Kirk,  2  Moo.  &  R.  221 ;  Hinde  v.  Whitehouse,  7  East  558; 
Morton  v.  Dean,  13  Met.  (Mass.)  385;  Freeport  v.  Bartol,  3  Greenl.  (Me.) 


472  STATUTE   OF  FRAUDS.  [CH.   XVII. 

bearing  upon  this  general  rule.1     The  Messrs.  Boydell,  being 
about  to  publish  an  illustrated  Shakespeare,  prepared  two 
prospectuses  containing  the  terms,  etc.,  on  which  the  num- 
bers were  to  be  furnished;  and  had  them,  and  also  a  book 
entitled  simply  "  Shakespeare  subscribers,  their  signatures  " 
(but  not   referred  to  in  the  prospectuses,  nor  referring  to 
them),  lying  about  the  shop.     The  defendant  put  his  name 
down  in  the  book  among  the  subscribers ;  but  it  was  held  in 
the  Court  of  Queen's  Bench  that  he  was  not  liable  on  his 
subscription,  there  being  no  such   connection  between   the 
prospectuses  and  the  book,  on  their  face,  as  to  enable  the 
court  to  consider  them  together  as  constituting  one  complete 
memorandum.     There  was  also  in  the  case  a  letter  from  the 
defendant,   in  reply  to  one  from  the  plaintiff,  calling  upon 
him  to  take  and  pay  for  his  numbers,  wherein  he  said  that  he 
ceased  taking  the  numbers  of  the  Boydell  Shakespeare  many 
years  before,  in  consequence  of  the  engagement  not  being  ful- 
filled on  the  part  of  the  proprietors,  etc. ;  but,  notwithstand- 
ing it  was  urged  by  the  counsel  that  no  other  engagement 
between  the  parties  was  shown  to  have  existed   beyond  what 
was  contained  in  the   prospectus,  the  court  held  the  letter 
insufficient ;  Lord  Ellenborough  remarking  that  the  engage- 
ment could  not  be  shown  to  be  that  of  the  particular  prospec- 

340;  O'Donnell  v.  Leeman,  43  Me.  158;  Wiley  r.  Robert,  27  Mo.  388; 
Boardman  v.  Spooner,  13  Allen  (Mass.)  353;  Clark  v.  Chamberlin,  112 
Mass.  19 ;  Johnson  v.  Buck,  35  N.  J.  L.  338;  Johnson  v.  Kellogg,  7  Tenn. 
262  ;  Ridgway  v.  Ingram,  50  Ind.  145 ;  Schafer  v  Farmers  &  Mechanics' 
Bank,  59  Pa.  St  144;  Stocker  v.  Partridge,  2  Rob  (X.  Y.)  193;  Tice  r. 
Freeman,  30  Minn.  389;  Mellon  v.  Davison,  123  Pa  St.  208;  Nibert  v. 
Baghurst,  47  N.  J.  Eq  201;  Wilson  v.  Miller,  42  111.  App.  Ct.  332;  Hale 
v.  Hale,  19  S.  E.  Rep.  (Va.)  739;  North  ».  Mendel,  73  Ga  404;  North 
Staffordshire  R.  R.  v.  Peck,  1  E.  B.  &  E.  100;  Fowler  Elevator  Co.  v. 
Cottrell,  38 Neb.  512.  Recent  English  cases  show  a  relaxation  of  this  rule. 
See  Long  r.  Millar,  L.  R.  4  C.  P.  D.  450;  Cave  v.  Hastings,  7  Q.  B.  1). 
125;  Oliver  v.  Hunting,  L.  R.  44  Ch.  D.  205.  The  last  named  case  dis- 
cusses the  subject  very  thoroughly,  and  holds  the  rule  to  be  that  parol 
evidence  may  always  be  received  to  show  the  circumstances  under  which 
the  papers  were  written,  in  order  to  ascertain  what  they  refer  to. 
1  Boydell  r.  Drummond,  11  East  142. 


CH.   XVII.]  THE   FORM,   ETC.,   OF  THE   MEMORANDUM.  473 

tus  without  parol  evidence,  which  the  statute  would  exclude ; 
but  if  there  had  been  a  plain  reference  to  the  particular  pro- 
spectus,  that  might  have  helped  the  plaintiff. 

§  349.  The  question  what  amounts  to  a  sufficient  reference 
of  the  different  papers  to  one  another,  on  their  face,  to  make 
them  one  memorandum,  has  been  judicially  considered  to 
some  extent.  Thus,  in  Allen  v.  Bennet,  the  defendant  hav- 
ing, by  his  agent,  made  and  signed  a  memorandum  for  the 
sale  to  the  plaintiff  of  "  8  cwt.  of  fine  shag  tobacco,"  and  of  a 
quantity  of  rice  and  other  tobacco,  and  it  being  objected,  in 
an  action  for  non-delivery,  that  the  plaintiff's  name  did  not 
appear  in  the  writing,  a  letter  was  produced,  written  by  the 
defendant  to  his  agent,  mentioning  the  sale,  and  naming  the 
plaintiff  as  the  person  who  had  bought.  It  was  held  that, 
under  all  the  circumstances,  this  letter  was  so  connected 
with  the  first  memorandum  that  it  might  be  read  therewith 
to  show  the  name  of  the  buyer.1  Again,  in  the  case  of  John- 
son v.  Dodgson,  in  the  Court  of  Exchequer,  the  memorandum 
of  a  bargain  for  the  sale  of  hops,  written  by  the  defendant, 
and  signed  by  the  plaintiff's  agent,  was  as  follows :  "  Sold 
John  Dodgson  [the  defendant]  27  pockets  Playsted,  1836, 
Sussex,  at  103s.  The  bulk  to  answer  the  sample.  4  pockets 
Selme,  Beckley's,  at  95s.,"  etc.  This  was  held  by  the  court 
a  sufficient  signature  by  the  defendant.2  The  defendant,  on 
the  same  day,  wrote  to  the  plaintiffs  requesting  them  to 
deliver  "the  27  pockets  Playsted,  and  the  4  pockets  Selme, 
1836,  Sussex,"  to  a  third  party.  It  was  insisted  that  the 
defendant's  letter  and  the  previous  memorandum  should  not 
be  read  together ;  that  parol  evidence  must  be  introduced  to 
show  that  there  was  only  one  such  contract,  i.  e.,  for  hops 
of  a  certain  description.  To  that  Lord  Abinger  said:  "The 
statute  does  not  absolutely  exclude  parol  evidence ;  it  only 

1  Allen  v.  Bennet,  3  Taunt.  173;  Louisville  Co.  r.  Lorick,  29  S.  C. 
533;  Kennedy  v.  Gramling,  33  S.  C.  367.  And  see  Long  i>.  Millar,  L.  R. 
4  C.  P.  D.  450. 

*  See  post,  §  357. 


474  STATUTE    OF   FRAUDS.  [CH.    XVII. 

requires  that  there  shall  be  a  note  of  the  contract  in  writing, 
in  order  to  exclude  fraud  or  mistake  as  to  its  terms. "  It  was 
not  found  necessary  in  the  decision  to  pass  upon  this  point, 
as  the  writing  previously  made  was  held  sufficient  of  itself; 
but  the  opinion  of  the  majority  of  the  court  appears  to  have 
been  that,  had  it  been  necessary  to  rely  upon  them  both,  the 
letter  and  the  previous  writing  were  so  connected  as  to  form 
one  memorandum  to  satisfy  the  statute.  Lord  Abinger,  in 
delivering  judgment,  after  remarking  that  the  case  was  clear 
on  other  grounds,  said :  "  If  it  rested  upon  the  question  as  to 
the  recognition  of  the  contract  by  the  letter,  there  might  have 
been  some  doubt;  although,  even  upon  that,  I  should  have 
thought  the  reference  to  the  only  contract  proved  in  the  case 
sufficient."  Bolland,  B.,  expressed  his  inclination  to  hold 
the  same;  but  Parke,  B.,  said  that,  if  the  question  had 
turned  upon  that  point,  he  should  have  had  very  considerable 
doubt  whether  the  letter  referred  sufficiently  to  the  contract; 
remarking  that  it  referred  to  the  subject-matter,  but  not  to 
the  specific  contract.1  The  same  learned  judge,  a  few  years 
afterward,  in  a  case  at  nisi  prius,  declined  to  connect  two 
writings,  on  the  ground  that  "the  whole  mischief  intended 
to  be  guarded  against  by  the  statute  would  be  incurred,  if 
verbal  evidence  were  admitted  to  show  that  the  documents 
must  necessarily  be  presumed  to  refer  to  each  other."  2 

§  350.  In  a  case  in  the  Supreme  Court  of  the  United 
States,3  where  the  memorandum  of  a  bargain  for  the  sale  of 
goods  was  ambiguous  in  some  of  its  terms,  the  majority  of 
the  court,  while  deciding  that  the  memorandum  was  suffi- 
cient of  itself,  expressed  the  opinion  that,  for  the  purpose  of 

1  Johnson  v.  Dodgson,  2  Mees.  &  W.  653.     It  was  said  in  the  argu- 
ment of  this  case,  upon  the  authority  of  Kennett  v.  Milbank,  1  Moo.  &  S. 
102,  that  a  letter  from  a  debtor  must  refer  specifically  to  the  debt  in 
question,  to  take  it  out  of  the  Statute  of  Limitations ;  but  Parke,  B., 
remarked  that  that  was  questionable,  and  cited  Lechmere  v.  Fletcher,  1 
Cromp.  &  M.  623. 

2  Jacob  v.  Kirk,  2  Moo.  &  R.  224;  but  see  Buxton  v.  Rust,  L.  R.  7 
Exch.  279,  and  cases  cited  under  §  348. 

»  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  446. 


CH.    XVII.]  THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  475 

explaining  ambiguities  in  the  memorandum,  resort  could  be 
had  to  a  bill  of  parcels  made  by  the  plaintiff  subsequently  to 
the  memorandum  and  containing  no  reference  to  it;  the  bill 
of  parcels  being  treated  (apparently)  as  one  of  the  contempo- 
raneous facts  in  the  light  of  which  the  paper  which  really 
constituted  the  memorandum  should  be  read.  Thus  limited, 
the  case  may  not  be  exposed  to  the  criticisms  since  made 
upon  it  in  the  same  court.1 

§  351.  In  cases  of  sales  by  auction,  the  entry  of  the  pur- 
chaser's name  with  the  price,  etc.,  in  the  sales-book  of  the 
auctioneer,  completes  the  memorandum ; 3  provided  that  the 
book  be  so  headed  and  otherwise  arranged  that  the  entry 
shall  be  intelligible  and  show  what  the  transaction  is.3  So 
with  the  note-book  of  a  broker,  so  far  as  his  entries  therein 
are  to  be  resorted  to  for  proof  of  any  bargain  and  sale  effected 
by  him  in  that  capacity.  But  it  has  been  much  disputed 
whether  the  broker's  entry  in  his  book  is  the  memorandum 
intended  by  the  statute,  or  the  bought  and  sold  notes  which 
he  hands  to  his  respective  parties.  It  is  clearly  settled  that 
the  bought  and  sold  notes  together  constitute  a  binding  memo- 
randum, though  the  broker  make  no  entry  in  his  book.4  But 
for  this  purpose  the  rule  is  that  they  must  agree  in  their 

1  See  Graf  ton  ?».  Cummings,  99  U.  S.  100.     But  see  Doherty  v.   Hill 
144  Mass.  468.     That  a  printed   advertisement  of  the  sale,  previously 
published,  may  be  considered  in  aid  of  the  auctioneer's  memorandum  for 
identifying  land  sold,  see  McBrayer  v.  Cohen,  92  Ky.  479. 

2  See  the  cases  cited  in  note  to  §  369,  post. 

*  Gill  v.  Bicknell,  2  Cush.  (Mass.)  355;  Rishton  v.  Whatmore,  8  Ch. 
Div.  467.  First  Baptist  Church  of  Ithaca  v.  Bigelow,  16  Wend.  (N.  Y.) 
28.  The  Revised  Statutes  of  New  York  and  the  statutes  of  some  other 
States  have  expressly  provided  what  shall  be  the  nature  of  the  book 
in  which  an  auctioneer's  entry,  to  be  binding,  must  be  made.  See  Ap- 
pendix. 

4  Hawes  ».  Forster,  1  Moo.  &  R.  368 ;  Rucker  v.  Carnmeyer,  1  Esp. 
105;  Hicks  v.  Hankin,  4  Esp.  114;  Chapman  v.  Partridge,  5  Esp.  256; 
Dickerson  v.  Lilwal,  1  Stark.  128;  Soames  v.  Spencer,  1  Dowl.  &  11.  32; 
Short  v.  Spackman,  2  Barn.  &  Ad.  962;  Grant  v.  Fletcher,  5  Barn.  &  C. 
436;  Gooni  v.  Aflalo,  6  Barn.  &  C.  117;  Trueman  v.  Loder,  11  Ad.  &  E. 
589;  Sievewright  v.  Archibald,  17  Q.  B.  103;  Bibb  v.  Allen,  149  U.S. 
481. 


476  STATUTE   OF  FRAUDS.  [CH.   XVII. 

terms.1  If  either  the  bought  or  the  sold  note  alone  be  pro- 
duced, the  other  will  be  presumed  to  correspond  with  it,  in 
the  absence  of  evidence  to  the  contrary.2  When  they  do  not 
agree,  or  when  they  both  state  a  contract  different  from  that 
entered  in  the  book,  the  question  is  presented,  which  is  the 
memorandum;  and  on  this  point  there  is  unquestionable 
conflict  in  the  decisions.  It  has  been  decided,  however, 
by  a  majority  of  the  judges  of  the  Queen's  Bench  that,  if 
the  bought  and  sold  notes  differ,  reference  may  be  had  to  the 
book  entry,  as  being  really  the  memorandum,  of  which  the 
notes  were  merely  meant  as  copies.3  Which  of  the  two,  the 
notes  or  the  book  entry,  shall  govern  when  the  notes  state 
a  different  contract  from  the  book  entry,  is  the  more  direct 
and  essential  question,  and  it  seems  to  be  still  undecided ; 
though  Erie,  J.,  in  the  case  in  the  Queen's  Bench,  intimates 
that,  in  the  absence  of  any  commercial  usage  to  rely  exclu- 
sively on  the  notes,  the  parties,  by  accepting  and  acquiescing 
in  them,  might  be  taken  to  have  ratified  the  bargain  there- 
in expressed,  and  so  adopted  it  instead  of  the  original  entry. 
Of  course,  if  there  are  no  bought  and  sold  notes,  or  none 
which  agree  together,  and  no  book  entry,  the  contract  cannot, 
so  far  as  it  depends  upon  written  evidence,  be  enforced;4 

1  Gumming  v.  Roebuck,  Holt,  N.   P.  172 ;  Thornton  r.  Kempster,  5 
Taunt.  786 ;  Gregsou  ».  Ruck,  4  Q.  B.  737 ;  Grant  v.  Fletcher,  5  Barn.  & 
C.   436;  Sievewright  v.  Archibald,  17   Q.  B.  103;  Peltier  v.  Collins,  3 
Wend.  (N.  Y.)  459;  Davis  v.  Shields,  26  Wend.  (N.  Y.)  341;  Suydam  v. 
Clark,  2  Sand.  (N.  Y.)  133. 

2  Hawes  v.  Forster,  1  Moo.  &  R.  368 ;  Parton  v.  Crofts,  16  C.  B.  N.  8. 11. 
8  Sievewright  v.  Archibald,  17  Q.  B.  103.     And  see  Hawes  v.  Forster, 

1  Moo.  &  R.  368 ;  Hinde  v.  Whitehouse,  7  East  558 ;  Pitts  v.  Beckett.  13 
Mees.  &  W.  743 ;  Heyman  v.  Neale,  2  Camp.  337  ;  Thornton  v.  Meux, 
Moo.  &  M.  43;  Thornton  v.  Charles,  9  Mees.  &  W.  802  ;  Townend  v. 
Drakeford,  1  Car.  &  Kir.  20;  Toomer  v.  Dawson,  Cheves  (S.  C.)  68. 
Where  the  bought  and  sold  notes  constitute  the  memorandum  relied  on, 
it  must  be  so  averred  in  the  declaration.  Rayner  v.  Linthorne,  Ryan  & 
M.  325. 

4  Grant  ».  Fletcher,  5  Barn.  &  C.  436;  Sievewright  v.  Archibald,  17 
Q.  B.  103.  And  see  Newbery  v.  Wall,  84  N.  Y.  576.  A  broker's  entry 
in  his  own  book,  without  any  bought  and  sold  notes,  was  held  sufficient 
in  Coddington  v.  Goddard,  16  Gray  (Mass.)  436. 


CH.   XVII.]  THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  477 

unless,  indeed,  as  has  been  suggested,  the  defendant,  by 
recognizing  one  of  the  notes  as  containing  correctly  the 
terms  of  the  bargain,  may  be  considered  to  have  accepted 
and  ratified  it.1 

§  351  a.  It  may  be  doubted  whether  the  courts,  so  far  as 
can  be  gathered  from  the  decisions  referred  to  in  the  preced- 
ing section,  have  not  failed  to  discriminate  in  all  cases 
between  a  written  contract  and  an  oral  contract  evidenced 
by  writing.  It  seems  clear  that  the  requirement  of  the 
statute  may  be  fully  met  either  by  a  bought  note  alone  or  a 
sold  note  alone,  not  because  of  the  peculiar  commercial  char- 
acter of  the  paper  in  either  case,  but  because,  like  any  other 
memorandum,  it  is  an  accurate  statement  in  writing  signed 
by  the  party  to  be  charged.  Thus,  in  a  recent  case  in 
Missouri,2  where  the  seller  of  goods  sold  by  parol  was  sued 
for  non-delivery,  a  sold  note  alone  was  held  a  sufficient 
memorandum,  on  the  ground  that  it  correctly  evidenced  the 
terms  of  the  contract,  and  was  signed  by  the  defendant's  duly 
authorized  sub-agent.  In  that  case  no  bought  note  was  pro- 
duced or  referred  to,  and  it  would  seem  generally  that  even 
if  no  bought  hote  had  been  made,  or  that,  if  one  had  been 
made,  it  differed  from  the  sold  note  in  not  stating  the  con- 
tract correctly,  the  latter  would  still  be  a  sufficient  memo- 
randum to  charge  the  seller. 

§  352.  It  is  immaterial  whether  the  memorandum  be  writ- 
ten in  ink  or  pencil,  or  otherwise ; 8  or  it  may  not  be  written 
at  all,  but  printed  or  stamped.4 

1  Erie,  J.,  in  Sievewright  v.   Archibald,  17  Q.  B.  103.     In  this  case, 
the  judges,  being  divided,   delivered  opinions  seriatim,   and  the   whole 
subject  of  broker's  notes  and  entries  will  be  found  there  discussed  at 
length,  and  the  authorities  carefully  examined.     A  careful  and  valuable 
discussion  of  the  subject  will  also  be  found  in  Langdell,  Select  Cases  on 
Sales,  1035 

2  Greeley-Bnrnham  Co  v.  Capen,  23  Mo.  App.  301. 

8  Geary  v.  Physic,  5  Barn.  &  C.  234 ;  Merritt  v.  Clason,  12  Johns. 
(N.  Y.)  102;  Clason  v.  Bailey,  14  Johns.  (X.  Y.)  484. 

4  Saunderson  v.  Jackson.  2  Bos.  &  P.  238  ;  Schneider  r.  Norris,  2  Maule 
&  S.  286.  In  Pitts  v.  Beckett,  13  Mees.  &  W.  743,  a  machine  copy  of  a 


478  STATUTE   OF  FRAUDS.  [CH.    XVII. 

§  352  a.  As  to  the  time  when  the  memorandum  must  be 
executed,  it  is  settled  that  it  may  be  at  any  time  subsequent 
to  the  formation  of  the  contract  by  the  parties,1  and  before 
action  brought.'2  It  has  been  sometimes  doubted  whether  it 
might  not  be  after  action  brought,  upon  the  ground  that  the 
statute  only  meant  to  secure  written  evidence  of  the  contract.3 
But  there  appears  to  have  been  no  direct  decision  to  that 
effect,  and  the  weight  of  opinion  as  well  as  of  reason  is 
against  it.4 

writing  was  offered  as  a  memorandum.  The  court  did  not  have  occasion 
to  pass  upon  the  instrument,  but  Baron  Parke  said  that  he  was  strongly 
of  opinion  that  it  would  do  as  a  memorandum.  See  also  Vielie  v.  Osgood, 
8  Barb.  (N.  Y.)  130;  McDowel  v.  Chambers,  1  Strobh.  (S.  C.)  Eq.  347; 
Draper  v.  Pattina,  2  Speers  (S.  C.)  292.  As  to  signature  by  printing, 
see  post,  §  356.  And  by  telegraph,  Hazard  v.  Day,  14  Allen  (Mass.)  487; 
Palmer  v.  Marquette  &  Pacific  Rolling  Mill  Co.,  32  Mich.  274;  Godwin  v. 
Francis,  L.  R.  5  C.  P.  295;  Little  v.  Dougherty,  11  Col.  103;  Brecken- 
ridge  v.  Crocker,  78  Cal.  529. 

1  Munday  v.  Asprey,  L.  R.  13  Ch.  D.  855. 

2  See  ante,  §  346,  and  cases  there  cited,  where  letters  of  the  defendant 
recognizing  the  contract  were  held  sufficient  to  charge  him.    Also  Williams 
r.  Bacon,  2  Gray  (Mass.)  387;  Sievewright  v.    Archibald,  17  Q.  B.  107, 
114.     The  time  of  making  the  memorandum  may  be  shown  by  extrinsic 
evidence,  even  in  contradiction  of  the  date  upon  the  memorandum  itself. 
Hewes  v.  Taylor,  70  Pa.  St.  387;  Heideman  v.  Wolfstein,  12  Mo.  App. 
366.     It  was  held  in   McAnnulty  v.    McAnnulty,   120  111.    126,  that  a 
memorandum   made  after  marriage  of   au   oral   ante-nuptial  agreement 
would  not  be  sufficient,  —but  qvcere.     See  §  344,  note  1,  supra. 

*  Fricker  v.   Thomlinson,  1  Man.  &  G.  772;  Thornton  v.  Kempster,  5 
Taunt.  786;  Gibson  v.   Holland,  L.  R.  1  C.  P.  1,  opinion  of  Wilk-s,  ,1. 
And  see  Nelson  v.  Dubois,  13  Johns.   (N.  Y.)  175;  Hudson  v.  King,  2 
Tenn.  560. 

*  Bill  v.  Bament,  9  Mees.  &  W.  36.   Erie,  J.,  in  Sievewright  ».  Archi- 
bald, 17  Q.    B.  103.     See  Bailey  r.  Sweeting,  9  C.  B.  x.  s    843.     Sec- 
ante.  §  338.     In  Rose  r.  Cunynghame,  11  Ves.  550,  before  Lord  Eldon, 
where  it  was  necessary  for  the  plaintiff  to  show  a  binding  contract  for.  the 
purchase  of  land  existing  prior  to  the  execution  of  a  will  by  the  pur- 
chaser, so  that  (the  contract  being  regarded  in  equity  as  executed)  the 
will  would  pass  that  land,  it  was  argued,  that  a  letter,  written  prior  to  the 
execution  of  the  will,  might  be  read  in  connection  with  a  deed  made  sub- 
sequently to  its  execution,  so  as  to  constitute  a  sufficient  memorandum  of 
the  purchase.     It  does  not  appear  that  Lord  Eldon  noticed  the  point,  but 
he  decided  against  the  sufficiency  of  the  writings  relied  upon,  on  other 
grounds.    Lucas  v.  Dixon,  L.  R.  22  Q.  B.  D.  357. 


CH.   XVII.]          THE   FORM,   ETC.,   OF  THE   MEMORANDUM.  479 

§  353.  In  the  case  of  auctioneers,  the  general  rule  just 
stated  seems  not  to  apply.  In  Buckmaster  v.  Harrop,  Lord 
Chancellor  Erskine  decided  (the  point  being  directly  pre- 
sented on  the  facts)  that  an  auctioneer's  entry,  to  be  valid  as 
a  memorandum,  must  be  made  contemporaneously  with  the 
sale;1  and  the  language  of  many  of  the  cases,  apparently 
uncontradicted,  is  that  the  n.ame  of  the  purchaser  must  be 
written  down  by  him  immediately  after  the  announcement  of 
the  bid  and  the  fall  of  his  hammer;  by  which  we  should 
understand,  before  proceeding  to  put  up  another  article. 
Mr.  Justice  Story,  referring  to  this  rule  as  to  auctioneers, 
puts  it  on  the  ground  that  men  are  not  to  be  "  ensnared  by 
contracts  subsequently  reduced  to  writing  by  their  agents."2 
His  remark  is  casually  made,  however,  and  the  rule  itself  is 
referred  to  by  him  in  illustration  merely  of  an  entirely  differ- 
ent question  under  the  statute.  If  we  except  this  remark, 
there  appears  to  be  no  support  for  the  position  that  a  memo- 
randum made  by  an  agent  (other  than  an  auctioneer)  acting 
for  the  party  to  be  charged,  must  be  contemporaneous  with, 
or  immediately  follow,  the  transaction,  any  more  than  if 
made  by  the  party  himself.3  No  such  exception  appears  to 
have  been  suggested  by  those  judges  who  have  had  occasion 
to  lay  down  the  general  rule,  that  the  memorandum  may  be 
made  at  any  time  before  action  brought;  and  we  do  some- 
times find  that  rule  laid  down  with  more  or  less  distinct 
inclusion  of  the  case  of  signature  by  an  agent,  though,  as 
was  before  remarked,  without  its  being  made  a  point  in  the 
decision.4  Again,  the  exception  seems  to  be  irreconcilable 

1  Buckmaster  v.  Harrop,  13  Ves.  456.  And  see  Mews  v.  Carr,  1 
Hurlst.  &  N.  484. 

Smith  v.  Arnold,  5  Mason,  414. 

•  In  Price  r.  Durin,  56  Barb.  (N.  Y.)  647,  an  auctioneer's  sale-book 
in  which  the  purchaser's  name  was  entered  when  the  lot  was  knocked 
down  to  him,  and  which  was  signed  by  the  auctioneer's  clerk  at  the  close 
of  each  day's  sales,  was  held  a  sufficient  memorandum,  although  the  New 
York  statute  requires  the  memorandum  to  be  made  "at  the  time"  of  the 
sale.  See  Jones  r.  Kokomo  Association,  77  Ind.  340. 

4  See,  in  particular,  Sievewright  c.  Archibald,  17  Q.  B.  103,  per  Erie 


480  STATUTE   OF  FRAUDS.  [CH.   XVII. 

with  what  we  have  seen  to  be  settled,  namely,  that  a  broker's 
bought  and  sold  notes,  though  there  be  no  previous  book 
entry  made  by  him,  constitute  a  binding  memorandum;  for 
such  notes  imply  a  legal  contract  antecedently  made  and 
concluded.1  And  if  the  exception  should  be  admitted  in 
cases  of  agency  generally,  it  would  leave  open  the  question, 
what  lapse  of  time  would  deprive  the  agent's  signature  of  its 
efficacy ;  a  question  which,  there  being  no  natural  criterion, 
as  in  the  case  of  the  auctioneer's  entry,  could  not  fail  to 
present  much  difficulty.  It  is  at  all  times  in  the  power  of 
the  principal  to  revoke  the  agent's  authority  to  sign,  before 
he  has  executed  the  signature ; 2  and,  on  the  whole,  we  may 
be  well  justified  in  hesitating  to  accept  a  casual  remark, 
even  of  such  an  eminent  jurist,  as  a  convincing  statement  of 
the  law  on  this  point. 

§  353  a.  The  cases  since  Buckmaster  v.  Harrop,  however, 
appear  to  rest  on  the  distinction  between  the  auctioneer's 
agency  for  the  seller  and  his  agency  for  the  buyer.  The 
former  they  seem  to  concede  (against  the  decision  of  that 
case)  may  continue  so  as  to  authorize  the  auctioneer  to  sign 
the  memorandum  at  some  time  after  the  sale ;  but  the  latter, 
held,  it  is  must  be  exercised  at  the  time  of  the  sale.3 

§  354.  We  shall  presently  see  that  whether  a  memoran- 
dum is  or  is  not  signed,  within  the  meaning  of  the  statute, 
depends  upon  the  intention  of  the  party  in  affixing  his  name.4 
But  the  rule  in  regard  to  the  intention  of  the  party  does  not 
seem  to  be  so  narrowly  applied  in  determining  whether  a 
paper  sufficiently  executed  for  the  purposes  of  a  memoran- 

and  Patteson,  JJ. ;  Williams  v.  Bacon,  2  Gray  (Mass)  387.  In  Barclay 
v.  Bates,  2  Mo.  App.  139,  it  was  held  that  the  sheriff's  memorandum  need 
not  be  made  contemporaneously  with  the  sale  by  him,  and  need  not  be 
signed  by  the  identical  deputy  who  made  the  sale.  And  see  Elston  v. 
Castor,  101  Tnd.  426. 

1  Farmer  c.  Robinson,  in  note  to  Heyman  ».  Neale,  2  Camp.  337. 

2  See  Gwathney  v.  Cason,  74  N.  C.  5. 

8  Mews  v.  Carr,  1  Hurlst.  &  N.  484 ;  Gill  ».  Bicknell,  2  Cush.  (Mass.) 
355  ;  Horton  r.  McCarty,  53  Me.  394. 
4  See  Doe  v.  Pedgriph,  4  Car.  &  P.  312. 


CH.    XVII.]          THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  481 

dum  shall  bind  the  party  as  such.  Where  a  paper  is  drawn 
up  and  signed  for  the  mere  purpose  of  having  an  agreement 
prepared,  as,  for  instance,  an  inventory  of  articles,  or  a  list 
of  heads  to  be  embraced  therein,  it  is  of  course  not  to  be 
itself  taken  as  the  agreement,1  but  it  may  be  available  as  a 
memorandum.2  Even  when  a  paper  is  drawn  up  as  the  final 
obligation,  if  it  be  retained  by  the  party  signing  it,  and 
never  in  any  way  delivered  as  his  agreement,  it  cannot  be 
made  use  of,  even  as  a  memorandum.3  And  generally  it  is 
held  that  where  the  writing  is  a  private  one,  or  kept  by  the 
maker  in  his  own  possession,  it  cannot  be  treated  as  a  memo- 
randum or  admission  of  the  agreement ; 4  but  an  instrument 
so  drawn  as  to  recognize  the  obligation,  though  not  for  that 
special  purpose,  will,  if  it  be  delivered  to  the  other  party 
and  accepted  by  him,  suffice  for  a  memorandum  under  the 
statute.6 

§  354  a.  The  Statute  of  Frauds  was  not  intended  to  apply 
to  written  contracts,  but  to  the  enforcement  of  oral  ones, 

1  Cooke  t>.  Tombs,  2  Anst.  420;  Pipkin  v.  James,  1  Humph.  (Term.) 
325.     And  see  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  559;  Thynne  v.  Glen- 
gall,  2  H.  L.  C.  131;  Mountacue  v.  Maxwell,  Stra.  236;  Rose  v.  Cunyng- 
hame,  11  Ves.  550  ;  Glengal  v.  Barnard,  1  Keen  769. 

2  Sugden,  Vend.  &  P.  115. 

8  Johnson  v.  Dodgson.  2  Mees.  &  W.  653,  remark  of  Parke,  B. ;  Grant 
v.  Levan.  4  Pa.  St.  393;  Johnson  r.  Brook,  31  Miss.  17;  Sanborn  r. 
Sanborn.  7  Gray  (Mass.)  142  ;  Comer  v.  Baldwin,  16  Minn.  172;  Steel 
r.  Fife,  48  Iowa  99;  Brown  v.  Brown,  33  N.  J.  Eq.  650;  Swain  v.  Bur- 
nette,  89  Cal.  564.  But  see  Bowles  v.  Woodson,  6  Grat.  (Va.)  78;  Jenkins 
r  Harrison,  66  Ala.  345;  Johnston  v.  Jones,  85  Ala.  286;  Parker  v.  Par- 
ker, 1  Gray  (Mass.)  409;  Wier  v.  Batdorf.  24  Neb.  83. 

4  Remington  r.  Linthicum,  14  Pet.  (U.  S.)  84;  Hart  ».  Carroll,  85 
Pa.  St.  508.  See  Peirce  r.  Corf,  L.  R.  9  Q.  B.  210;  Ruckle  v.  Barbour, 
48  Ind.  274.  But  see  Drury  v.  Young,  58  Md.  546;  Logsdon  r.  Newton, 
54  Iowa  448;  Sullivan  v.  O'Neal,  66  Texas  433  See  Chesebrough  p. 
Pingree,  72  Mich.  438. 

6  Ellis  v.  Deadman,  4  Bibb  (Ky.)  466  ;  Smith  r.  Arnold,  5  Mas.  (C.  C.) 
414;  Shippey  v.  Derrison,  5  Esp.  190;  Evans  v.  Prothero,  1  De  G.,  M.  & 
G.  572;  Howe  v.  Dewing,  2  Gray  (Mass.)  476;  Durrell  v.  Evans,  1  Hurlst- 
&  C.  174;  Thayer  v.  Luce,  22  Ohio  St.  62.  And  see  Dobell  v.  Hutchin- 
son,  3  Ad.  &  E.  355;  Sugden,  Vend.  &  P.  114;  Alford  r.  Wilson,  26  S. 
W.  Rep.  (Ky.)  539. 

31 


482  STATUTE  OF  FRAUDS.  [dL  XVI [. 

when  properly  evidenced,  as  by  the  admission  in  a  writing 
of  the  party  to  be  charged.  It  has  therefore  always  been 
held  that  letters  addressed  to  a  third  party,  stating  and 
affirming  a  contract,  may  be  used  against  the  writer,  as  a 
memorandum  of  it.1  And  for  the  same  reason,  an  oral  con- 
tract may  be  taken  out  of  the  statute  by  letters  which  admit 
the  making  of  the  contract  by  the  writer,  but  in  terms  repu- 
diate his  liability.2  An  instrument  intended  to  operate  as 
of  a  higher  nature,  but  insufficient  for  that  purpose,  as,  for 
instance,  a  deed  of  land  which  is  defective  in  not  having  an 
habendum,  or  a  bond  to  convey  land,  signed  after  the  obliga- 
tory part  instead  of  at  the  foot,  may  be  available  as  a  simple 
memorandum.3  An  answer  filed  in  a  prior  suit  setting  up  an 
oral  contract  and  not  pleading  the  statute  has  been  held  a 
sufficient  memorandum  for  the  enforcement  of  the  contract 
in  a  subsequent  proceeding.4 

§  354  b.  The  question  how  far  the  contents  of  a  deed  of  land, 
executed  by  a  vendor  but  delivered  in  escrow  only,  may  be 
resorted  to  in  aid  of  a  previous  insufficient  memorandum  of 

1  Moore  v.  Hart,  1  Vern.  110;  Ayliffe  v.  Tracy,  2  P.  Wms.  65;  Owen 
p.  Thomas,  3  Myl.  &  K.  353;  Gibson  v.  Holland,  L.  R.  1  C.  P.  1 ;  Fugate 
v.  Hausford,  3  Litt.  (Ky.)  262;  Moss  o.  Atkinson,  44  Cal.  3;  Spangler  v. 
Danforth,  65  111.  152;  Kleeman  v.  Collins,  9  Bush  (Ky.)  460;  Moore  v. 
Mountcastle,  61  Mo.  424;  Mizell  v.  Burnett,  4  Jones  (N.  C.)  Law  249; 
Wood  v.  Davis,  82  111.  311.     And  see  Cox  v.  Cox,  Peck  (Tenn.)  443; 
Kuhn  v.  Brown,  1  Hun  (N.  Y.)  244.     A  suggestion  is  apparently  made 
to  the  contrary,  though  not  acted  upon,  in  Buck  v.  Pickwell,  27  Vt.  167  ; 
Clark  v.  Tucker,  2  Sand.  (X.  Y.)  157;  Kinloch  v.  Savage,  Speers  (S.  C.) 
Eq.  464;  Wright  v.  Cobb,  5  Sneed  (Tenn.)  143 ;  Lee  v.  Cheney,  85  Tenn. 
707;  Cunningham  v.   Williams,  43  Mo.  App.  629;  First  Nat.  Bank  of 
Plattsburg  v.  Sowles,  46  Fed.  Rep.  731. 

2  Bailey  v.  Sweeting,  9  C.  B.  N.  s.  843 ;   Wilkinson   v.   Evans,   L.   R. 
1  C.  P.  407;  Heideman  v.  Wolfstein,  12  Mo.  App.  366.     See  Westmore- 
land v.  Carson,  76  Texas  619. 

8  Reeves  v.  Pye,  1  Cranch  (C.  C.)  219;  Argenbright  v.  Campbell,  3 
Hen.  &  M.  (Va.)  144;  Henry  v.  Root.  33  N.  Y.  526 ;  Henderson  v.  Beard, 
51  Avk.  483;  Cannon  v.  Handley,  72  Cal.  133;  Popp  v.  Swanke,  68  Wise. 
364 ;  Ryan  v.  United  States,  136  U.  S.  68.  But  see  Luzader  r.  Rich- 
mond, 128  Ind.  344;  Freeland  v.  Charnley,  80  Ind.  132. 

*  Jones  r.  Lloyd,  117  111.  597. 


CH.   XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  483 

the  contract,  or  to  serve  as  a  memorandum  of  a  parol  con- 
tract, has  been  much  considered.  It  has  been  held  that,  if  a 
person  who  has  made  a  parol  agreement  to  sell  land,  sign  an 
instrument  in  the  form  of  a  conveyance  of  such  land  to  the 
vendee,  and  deliver  it  in  escrow,  if  such  instrument  contain 
the  terms  of  the  parol  agreement,  including  the  considera- 
tion, it  is  a  sufficient  compliance  with  the  Statute  of  Frauds.1 
But  this  is  opposed  to  the  decided  weight  of  authority.2 
With  more  show  of  reason  it  has  been  held  that,  considering 
the  imperfect  memorandum  and  the  deed  delivered  in  escrow 
as  parts  of  the  same  transaction,  the  contents  of  the  deed 
might  be  resorted  to  in  order  to  help  out  the  insufficient 
description  in  the  memorandum.3  But  to  this  it  is  replied, 
with  great  force,  that  the  escrow  is  not  an  operative  instru- 
ment at  all  or  for  any  purpose,  for  want  of  delivery,  and 
therefore  cannot  form  any  element  of  a  binding  contract.4 

§  355.  Whatever  be  the  form  of  the  memorandum,  the 
statute  requires  that  it  be  signed.  Though  it  should  be  all 
written  out  with  the  party's  own  hand,  there  must  still  be  a 
signature.5  But  if  the  names  of  the  principals  appear  in  such 

1  Cagger  v.  Lansing,  57  Barb.    (N.  Y.)  421  ;   and  see  Campbell  v. 
Thomas,  42  Wise.  437.     See  also  3  VVashburn  on  Real  Property,  303. 

2  Parker  v.  Parker,  1   Gray  (Mass.)  489;  Overman  v.  Kerr,  17  Iowa 
485;  Freeland  v.  Charnley,  80  Ind.  132;  Cannon  ».  Cannon,  26  N.  J.  Eq. 
316;  Johnston  v.  Jones,  85  Ala.  286.     Cagger  v.  Lansing  was  reversed  in 
43  N.  Y.  550.     The  statement  in  Washburn  was  pronounced  in  Freeland 
v.  Charnley  to  be  "  radically  wrong."     In  the  opinion  in  that  case  the 
report  of  Campbell  v.  Thomas  is  critically  examined,  and  it  is  shown  that 
its  effect  is  to  leave  the  question  open. 

8  Kopp  r.  Reiter.  146  111.  447;  Jenkins  P.  Harrison,  66  Ala.  345; 
Work  v.  Cowhick,  81  111.  317  ;  Wood  v.  Davis,  82  111.  311 ;  Swain  v. 
Burnette,  89  Cal.  564 ;  Johnston  v.  Jones,  85  Ala.  286. 

4  Freeland  v.  Charnley,  80  Ind.  132.  And  see  Doherty  v.  Hill,  144 
Mass.  405. 

6  Rawdes  r.  Amhnrst,  Finch,  Prec.  in  Ch.  402;  Hawkins  P.  Holmes,  1 
P.  Wms.  770,  and  Ithel  P.  Potter,  there  cited ;  Selby  P.  Selby,  3  Meriv.  2 ; 
Hubert  v.  Moreau,  12  Moo.  216;  Hubert  r.  Turner,  4  Scott,  N.  R.  486  ; 
Bailey  P.  Ogden,  3  Johns.  (N.  Y.)  399;  Anderson  v.  Harrold,  10  Ohio 
399;  Barry  v.  Law,  1  Cranch  (C.  C)  77;  Wade  v.  City  of  Newbern,  77 
N.  C.  460;  Rafferty  v.  Lougee,  63  N.  H.  54;  Andrews  r.  Babcock,  63 
Conn.  109. 


484  STATUTE   OF  FRAUDS.  [CH.    XVII. 

way  as  to  amount  to  signature,1  it  is  not  necessary  that  the 
signature,  or  even  the  name,  of  the  agent  through  whom  the 
business  is  transacted  should  appear  in  the  writing ;  at  least 
this  is  so  in  cases  of  contracts  made  through  brokers  and 
auctioneers  who  are  deemed  to  be  the  agents  of  both  parties, 
and  by  virtue  of  their  employment  stand  in  such  a  relation 
to  their  principals  that  they  can  sign  the  names  of  the  parties 
to  a  contract  of  sale  effected  through  their  agency.2  Sealing 
does  not  appear  ever  to  have  been  considered  necessary  under 
the  fourth  section.3  Whether  the  language  of  the  statute 
requiring  the  memorandum  to  be  signed,  will  be  satisfied  by 
a  seal  without  any  writing,  has  never  been  decided.  In  the 
somewhat  analogous  case  of  the  signature  to  a  will,  required 
by  the  statute,  the  question  must  be  considered  still  open. 
It  was  said  by  a  majority  of  the  judges  in  the  case  of  Lemayne 
v.  Stanley,  decided  within  four  years  after  the  enactment  of 
the  Statute  of  Frauds,  that  a  party's  sealing  his  will  was  a 
sufficient  signature,  for  that  "  signum  is  no  more  than  a  mark, 
and  sealing  is  a  sufficient  mark  that  this  is  his  will. " 4  Next, 
it  is  reported  by  Strange  that  Chief  Justice  Raymond,  on  an 
issue  directed  out  of  Chancery,  ruled  that  sealing  a  will  was 
a  signing  within  the  Statute  of  Frauds  and  Perjuries.5  And 
still  later,  in  the  report  of  Atkyns,  it  is  said  of  Lord  Hard- 
wicke  that  "sealing  without  signing,  in  presence  of  the 
witness,  he  seemed  to  think,  would  have  been  sufficient  to 
make  it  a  good  will,  but  said  it  was  a  point  proper  to  be 
determined  at  law."  6  A  few  years  afterward  the  Exchequer 
barons  condemned  the  opinion  of  the  judges  in  Lemayne  v. 

1  See  §§  357,  358,  post. 

2  Coddington  r.  Goddard,  16  Gray  (Mass.)  444. 

8  Wheeler  v.  Newton,  Free,  in  Ch.  16;  s.  c.,  more  fully  reported  in 
2  Eq.  Cas.  ,44,  c.  5  ;  Worrall  v.  Munn,  5  N.  Y.  229 ;  Farris  v.  Martin,  10 
Humph.  (Tenn.)  495. 

4  Lemayne  v.  Stanley,  3  Lev.  1. 
,  5  Warneford  r.  Warneford,  Stra.  764. 

8  Gryle  v.  Gryle,  2  Atk.  177.  But  see  Grayson  v.  Atkinson,  2  Ves.  Sr 
454. 


CH.   XVII.]        THE   FORM,   ETC.,   OF  THE   MEMORANDUM.  485 

Stanley,  considering  it  a  strange  doctrine,  for  that,  "if  it 
was  so,  it  would  be  very  easy  for  one  person  to  forge  any 
man's  will  by  only  forging  the  name  of  any  two  obscure 
persons  dead,  for  he  would  have  no  occasion  to  forge  the 
testator's  hand ; "  and  they  said  that  "  if  the  same  thing 
should  come  in  question  again,  they  should  not  hold  that 
scaling  a  will  only,  was  a  sufficient  signing  within  the 
statute."1  More  lately,  Lord  Eldon,  in  the  case  of  Wright 
v.  Wakeford,  alluding  to  the  old  doctrine  that  sealing  was 
sufficient  where  the  statute  prescribed  signing,  declared  that 
the  contrary  had  been  held  for  a  long  time,  adding  that  "so 
far  is  sealing  from  being  equivalent  to  signing,  that  it  is 
determined,  that  sealing  is  not  necessary."2 

§  355  a.  A  signature  consisting  of  the  mark  of  the  party 
only  would,  it  seems,  be  sufficient,3  and  a  signature  by 
initials  has  been  held  so.4 

§  356.  A  printed  signature  will  also  answer  the  require- 
ments of  the  statute,  if  there  be  sufficient  evidence  of  its 
adoption  as  such  by  the  party  to  be  charged.  Thus  where  a 
trader  who  is  in  the  habit  of  delivering  printed  bills  of 
parcels  to  which  his  name  is  prefixed,  delivers  one  contain- 
ing the  necessary  particulars  of  the  contract,  it  is  sufficient.5 

1  Smith  i?.  Evans,  1  Wils.  313. 

2  Wright  v.  Wakeford,  17  Ves.  459.     With  submission,  however,  it 
may  be  said  to  be  quite  obvious  that  although  sealing  may  not  be  pre- 
cisely equivalent  to,  it  may  be  something  higher  and  more  solemn  than, 
mere  signature ;  so  that  the  inference  that  it  was  insufficient  would  not 
follow  from  its  being  unnecessary.     See  also  Morison  ».   Tumour,   18 
Ves.  175.     His  Lordship  refers  to  no  cases  in  support  of  his  remark. 

8  Selby  v.  Selby,  3  Meriv.  2;  Schneider  v.  Norris,  2  Maule  &  S.  2Sti, 
per  Lord  Ellenborough.  See  Hubert  c.  Moreau,  2  Car.  &  P.  528.  And 
see  the  following  cases  holding  the  execution  of  a  will  by  mark  to  be  good : 
Wilson  v.  Beddard,  12  Sim.  28 ;  Taylor  v.  Dening.  3  Nev.  &  P.  228 ; 
Jackson  v.  Van  Dusen,  5  Johns.  (N.  Y.)  144;  In  re  Field,  3  Curt.  (Eccl.) 
752. 

4  See  §  362,  post. 

6  Saunderson  v.  Jackson,  3  Esp.  180;  Schneider  r.  Norris,  2  Maule  & 
S.  286.  And  see  Commonwealth  v.  Ray,  3  Gray  (Mass.)  447;  Lerned  v. 
Wannemacher,  9  Allen  (Mass.)  417. 


486  STATUTE   OF   FRAUDS.  [CH.   XVIL 

In  a  case  where  the  defendant's  name  as  vendor  was  printed 
at  the  head  of  a  bill  of  parcels,  and  the  plaintiff's  name  as 
vendee  was  written  in  below  in  the  defendant's  handwriting, 
Lord  Ellenborough  held  that  the  defendant  had  thus  affirmed 
the  printed  name  as  his  own ;  but  remarked  that  if  the  case 
had  rested  merely  on  the  printed  name,  unrecognized  by,  and 
not  brought  home  to,  the  party,  as  being  printed  by  him  or 
by  his  authority,  so  that  the  printed  name  had  been  unappro- 
priated to  the  particular  contract,  it  might  have  afforded 
some  doubt  whether  it  would  not  have  been  trenching  upon 
the  statute  to  have  admitted  it.1  There  would  seem  to  be  no 
doubt  that  a  man's  stamping  or  impressing  his  name  himself 
on  the  memorandum  is  a  good  signature.2 

§  357.  In  regard  to  the  place  of  the  signature, there  is  no 
restriction.  It  may  be  at  the  top,  or  in  the  body,  of  the 
memorandum  as  well  as  at  the  foot.  It  was  held  in  a  very 
early  case  that  an  instrument  in  a  testator's  handwriting, 
commencing  "I,  A.  B.,  do  make,"  etc.,  was  sufficiently 
signed  as  a  will ; 3  and  the  same  rule  has  been  applied  in 
many  cases  of  memoranda  of  agreement  commencing  in  the 
same  way,  or  in  the  third  person,  as  "Mr.  A.  B.  proposes,'' 
etc.4  But  the  name,  beside  being  in  his  handwriting,  must 

1  Schneider  ».  Norris,  2  Maule  &  S.  286 ;  Drury  v.  Young,  58  Md.  546. 
Since  the  Revised  Statutes  of  New  York,  requiring  the  memorandum  to 
be  "  subscribed,"  it  is  held  in  that  State  that  an  actual  manual  subscrip- 
tion in  writing  is  necessary,  and  that  a  printed  signature  is  not  sufficient. 
Vielie  r.  Osgood,  8  Barb.  130;  Davis  ».  Shields,  26  Wend.  351. 

2  Pitts  v.   Beckett,   13  Mees.  &  W.  743.     Qucere,  if  this,  done  at  the 
bottom  of  the  instrument,  would  not  satisfy  the  New  York  statute  cited 
in  the  last  note. 

3  Lemayne  v.  Stanley,  3  Lev.  1. 

4  Knight  v.  Crockford.  1  Esp.  188;  Ogilvie  v.  Foljambe,  3  Meriv.  53; 
Morison  v.  Tumour,  18  Ves.  175;  Propert  v.  Parker,  1  Russ.  &  M.  625; 
Western  v.   Russell,  3  Ves  &  B.  187;  Penniman  v.  Hartshorn,  13  Mass. 
87 ;  Hawkins  v.  Chace,  19  Pick.  (Mass.)  502  ;  Yerby  v.  Grigsby,  9  Leigh 
(Va  )  387;  Bleakley  v.  Smith,  11  Sim.  150;  Holmes  v.  Mackrell,  3  C.  B. 
N.  8.  789.     The  New  York  Court  of  Appeals  have  decided  (reversing  the 
judgment  of  the  Supreme  Court),  that  since  their  Revised  Statutes  re- 
quiring the  memorandum  to  be  subscribed,  the  signature  must  be  at  the 


CH.   XVII.]        THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  487 

always  be  inserted  in  such  a  manner  as  to  authenticate  the 
instrument  as  the  act  of  the  party  executing  it,  or,  in  other 
words,  to  show  the  intention  of  the  party  to  admit  his  lia- 
bility upon  the  contract.1  The  mere  insertion  of  his  name 
in  the  body  of  an  instrument,  where  it  is  applicable  to  a  par- 
ticular purpose,  will  not  constitute  a  signature  within  the 
meaning  of  the  statute.2  And  although  it  be  so  inserted  as 
to  control  and  direct  the  entire  instrument,  still  the  better 
opinion  seems  to  be  that  its  insertion  must  also  be  intended 
as  a  final  signature,  and  that  if  it  appear  that  the  instrument 
was  to  be  further  executed,  it  will  not  be  taken  to  have 
already  been  sufficiently  signed.  Such  was  the  decision  of 
the  High  Court  of  Delegates  in  a  case  of  a  will  where  both 
real  and  personal  property  were  disposed  of,  and  the  testa- 
trix signed  and  sealed  it,  a  clause  of  attestation  in  the  com- 
mon form  being  subjoined,  but  no  subscription  of  witnesses ; 
and  the  will  was  found,  at  her  death,  wrapped  in  an  envelope 
on  which  was  written,  "  1  sealed  and  signed  my  will  to  have 
it  ready  to  be  witnessed  the  first  opportunity  I  could  get 
proper  persons  for  it;  "  it  was  held  not  well  signed  so  as  to  . 
pass  even  the  personal  property.3  The  same  view  has  been 
taken  by  high  authority  in  several  cases  arising  upon  the 
fourth  section.*  It  was  criticised  by  Lord  Eldon,  it  is  true, 

foot.  James  v.  Patten,  6  N.  Y.  9  ;  Traylor  v.  Cabanne,  8  Mo.  App.  131; 
Coon  v.  Rigden,  4  Col.  275;  Tingley  v.  Bellingham  Bay  Boon  Co.,  5 
Wash.  644. 

1  See  cases  cited  in  last  note ;  also  Kronheim  v.  Johnson,  7  Ch.  Div. 
60.     The  Supreme  Court  of  Maryland  has  repudiated  this  doctrine.    Hig- 
don  v.  Thomas,  1  Harr.  &  G.  139.    The  question  is  for  the  jury.   Johnson 
v.  Dodgson,  2  Mees.  &  W.  653. 

2  Stokes  v.  Moore,  1  Cox  219;  Hubert  v.  Turner,  4  Scott  X.  R  480, 
Cabot  v.  II asking.  3  Pick.  (Mass.)  95.    But  se«  Higdon  v.  Thomas,  1  Harr. 
&  G.  (Md.)  139;  Coe  v.  Tough,  116  N.  Y.  273. 

«  Walker  v.  Walker,  1  Meriv.  503. 

*  Hubert  v.  Turner,  4  Scott  N.  R  486;  Hawkins  v.  Chace,  19  Pick. 
(Mass.)  502;  Barry  r.  Coombe,  1  Pet.  (U.  S.)  640.  And  see  Parker  ». 
Smith,  1  Coll.  Ch.  608;  McConnell  r.  Brillhart,  17  111.  354;  Wise  v.  Ray, 
3  Iowa  430;  McMillen  v.  Terrell,  23  Ind.  163.  Also,  the  valuable  re- 
marks of  Mr.  Fell,  Merc.  Guar.  Appendix,  No.  V. 


488  STATUTE   OF   FRAUDS.  [CH.  XVII. 

in  Saunderson  v.  Jackson,  where  he  said  that  if  a  man  make 
a  memorandum  commencing,  "I,  A.  B.,"  etc.,  it  is  held 
sufficient,  though  it  is  manifest  he  intends  a  further  signa- 
ture. l  But  it  may  be  questioned  whether  this  broad  obser- 
vation is  justified  by  the  authorities.  Where  instruments 
commencing  in  the  first  person  have  been  taken  to  be  well 
signed,  without  subsequent  subscription,  they  generally  ap- 
pear to  have  been  so  attested,  or  accompanied  by  acts  of  the 
party  so  clearly  showing  that  he  regarded  the  instrument  as 
complete,  as  to  repel  the  presumption  of  an  intention  to  make 
a  further  execution ; 2  in  cases  of  instruments  commencing 
in  the  third  person,  as,  "Mr.  A.  B.  agrees,"  etc.,  such  a 
presumption  does  not  arise.  Actual  delivery  of  a  memo- 
randum of  the  former  class  as  the  agreement  of  the  party, 
and  perhaps  the  res  yestce,  the  circumstances  attending  the 
writing  of  it,  would  be  taken  into  consideration  to  determine 
whether  it  was  signed  within  the  intent  and  meaning  of  the 
law.3 

§  358.  In  an  early  case  in  Massachusetts,4  the  memoran- 
dum was  as  follows:  "Hartshorn  $•  Arnold,  of  Providence, 
Dec.  13,  1813.  I  sold  to  the  above  gentlemen  39  bales  up- 
land cotton  at  40  cents,  —  60  days  for  approved  security. 

1  Saundersou  v.  Jackson,  2  Bos.  &  P.  238. 

2  See  the  remark  of  L.  C.  B.  Skinner,  in  Stokes  v.  Moore,  1  Cox  219. 
In  Knight  v.  Crockford,  1  Esp.  188,  the  defendent  drew  up  a  paper  in  the 
first  person,  and  the  plaintiff,  after  approving  of  its  terms,  required  the 
following  to  be  added:   "  That  the  parties  bound  themselves  to  its  per- 
formance under  a  penalty  of  £100;  "  and  the  defendant  added  it  with 
his  own  hand,  and  it  was  signed  by  the  plaintiff  and  attested  by  a  witness; 
and  the  defendant,  though  he  did  not  sign  it,  allowed  the  plaintiff  to  take 
it  away;  it  was  decided  that  the  memorandum    was  binding  upon  the 
plaintiff.     The  decision  seems  to  be  amply  justified  upon  the  ground-  that 
the  defendant,  by  his  written  addition  to  the  instrument,  recognized  it  as 
perfectly  executed  by  him  beforehand. 

8  Hawking  v.  Chace,  19  Pick.  (Mass.)  502;  Evans  v.  Ashley,  8  Mo.  177. 
With  further  reference  to  the  question  of  place  of  signature,  see  Sanborn 
v.  Sanborn,  7  Gray  (Mass.)  142;  Schneider  v.  Norris,  2  Maule  &  S.  286; 
Johnson  v.  Dodgson,  2  Mees.  &  W.  653;  Durrell  v.  Evans,  1  Hurlst.  &  C. 
174. 

4  Penniman  v.  Hartshorn,  13  Mass.  87. 


CH.   XVII.]        THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  489 

Silas  Penniman.  Bill  to  be  made  out  in  the  names  of  Harts- 
horn $•  Arnold,  Warden  fr  Billings,  and  Andrew  Taylor." 
The  words  in  italics  were  written  by  the  defendant  Hartshorn, 
the  residue  by  the  plaintiff;  and  it  appeared  (parol  evidence 
being  admitted  for  that  purpose)  that  the  plaintiff  read  the 
memorandum  to  Hartshorn.  It  was  objected  that  it  was  not 
properly  signed,  the  names  of  the  defendants  being  above, 
and  not  below,  the  body  of  the  paper.  This  objection  the 
court  overruled ;  but  there  was  another  point,  not  taken  at 
the  argument  or  noticed  in  the  decision,  which  seems  worthy 
of  consideration.  The  paper  was  actually  signed  by  Penni- 
man, the  plaintiff,  and,  from  its  whole  structure,  seems  to 
have  been  intended  for  his  signature;  and  this  feature,  on 
the  principle  stated  in  the  preceding  section,  should  ordi- 
narily have  deprived  of  its  efficacy  as  a  signature  the  inser- 
tion of  the  defendant's  name  above.1  According  to  this  case, 
therefore,  it  seems  that  the  same  paper,  though  adapted  to 
the  signature  of  one  party  only,  may  be  signed  by  both ;  the 
one  subscribing,  and  the  other  inserting  his  name  elsewhere 
in  the  instrument,  by  way  of  recognition  of  the  contract.2 
The  words  which  follow  the  signature  of  Penniman  are,  in 
the  present  instance,  particularly  to  be  noticed,  as  convey- 
ing such  recognition  quite  unequivocally. 

§  359.  But  it  has  been  decided  that  a  signature  as  witness 
may  bind  as  principal  the  party  signing ;  and  this,  certainly, 
is  not  easy  to  reconcile  with  the  rule  that  a  signature,  to  be 
valid,  must  be  so  placed  as  to  authenticate  the  instrument  as 
the  act  of  such  party.  The  doctrine  has  been  strongly  con- 
demned by  Lord  Denman,  C.  J.,3  but  still  appears  to  be 
tenable  under  such  limitations  as  are  presented  in  the 
instances  where  it  was  actually  applied.  It  was  first  held 

1  Evans  v.  Ashley,  8  Mo.  177. 

2  See  Blnck  v.  Gompertz,  7  Exch.  862 ;    Knight  v.  Crockford,  1  Esp. 
188;  Johnson  v.  Dodgson,  2  Mees.  &  W.  653;  Evans  v.  Hoare,  L.  R.  1  Q. 
B.  D.  1892,  593. 

8  Gosbell  v.  Archer,  2  Ad.  &  E.  508.  See  Noakes  v.  Morey,  30  Ind. 
103. 


490  STATUTE  OF  FKAUDS.  [CH.  XVII 

in  Welford  v.  Bezely,  where  the  defendant  verbally  prom- 
ised to  give  the  plaintiff  XI, 000  as  a  marriage  portion,  and, 
articles  being  drawn  up  to  that  effect  and  read  over  to  her, 
she  put  her  name  to  them  in  the  place  for  the  witness's 
signature;  Sir  Thomas  Sewell,  M.  R.,  held  it  sufficiently 
signed  by  her  as  principal.1  And  afterward,  in  Coles  v. 
Trecothick,  an  auctioneer  who  had  authority  to  sell  cer- 
tain lots  of  land  at  private  sale,  told  the  owner  that  he  had 
two  confidential  clerks  through  whom  he  transacted  great 
part  of  his  business,  and  who,  in  his  absence,  would  enter 
into  contracts,  and  the  owner  assented,  and  afterward  the 
auctioneer  contracted  for  the  sale  of  one  of  the  lots,  and  after 
he  had  left  town,  one  of  the  clerks  signed  the  memorandum 
thus :  "  Witness  Evan  Phillips  for  Mr.  Smith,  Agent  for  the 
Seller."  Lord  Eldon  held  the  signature  sufficient  to  bind 
the  owner,  and  laid  down  the  rule,  that  "  where  a  party,  or 
principal,  or  person  to  be  bound,  signs  as,  what  he  cannot 
be,  witness,  he  cannot  be  understood  to  sign  otherwise  than 
as  principal."  2  He  adds  that  the  signature  of  an  agent,  not 
a  contracting  party,  as  a  witness,  would  not  be  sufficient, 
and  this  qualification  appears  to  apply  to  the  case  before 
Lord  Denman,  where  the  signature  (in  the  witness's  place) 
was  by  one  who  was  proved  aliunde  to  be  the  clerk  of  the 
auctioneer,  the  principal,  but  did  not  on  the  face  of  the 
instrument  appear  to  be  or  to  represent  the  contracting  party; 
whereas  in  Coles  v.  Trecothick  that  fact  did  appear. 

§  360.  Notwithstanding  the  doctrine  that  the  signature 
must  be  such  as  to  authenticate  the  instrument,  it  has  been 
held,  in  an  early  case  in  Massachusetts,  that  a  signature  in 
blank  will  suffice  to  bind  the  party  to  a  guaranty  afterward 
inserted  over  it  by  his  agent,  whose  express  authority  to  do 
so  may  be  proved  by  parol.3  The  decision  is  briefly  reported, 

1  Welford  v.  Bezely,  1  Wils.  118. 

2  Coles  v.  Trecothick,  9  Ves.  234.   See  Hill  v.  Johnston,  3  Ired.  (N.  C.) 
Eq.  432. 

8  Ulen  v.  Kittredge,  7  Mass.  233.  See  also  Underwood  v.  Hossack, 
38111.  208;  Blacknall  v.  Parish,  6  Jones  (X.  C.)  Eq.  70.  From  the  man- 


CH.   XVII.]        THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  491 

and  stands  directly  opposed  to  that  of  the  Supreme  Court  of 
New  Hampshire  a  few  years  later,  where  the  reasons  against 
the  admission  of  such  an  exception  are  very  forcibly  stated. 
It  is  there  urged  that  such  a  signature  cannot  be  said  to 
authenticate,  or  bind  the  party  signing  to  an  admission'  of 
what  is  afterward  inserted ;  and  the  court  say :  "  There  is  a 
material  distinction  between  authorizing  an  agent  to  sign  a 
contract  already  written,  or  make  and  sign  an  agreement, 
and  authorizing  an  agent  to  reduce  to  writing  a  contract 
already  made.  Where  an  agent  has  been  authorized  to  sign 
a  contract  reduced  to  writing,  as  soon  as  his  authority  and 
signature  are  proved,  the  writing  becomes  evidence  of  the 
terms  of  the  contract.  The  authority  of  signature  may  be 
proved  by  parole.  ...  So  where  an  agent  has  been  author- 
ized to  make  a  contract,  and  has  reduced  it  to  writing  and 
signed  it,  when  his  authority  and  signature  are  proved,  the 
writing  itself  becomes  evidence  of  the  contract,  and  although 
the  principal  may  deny  the  authority  and  signature  of  the 
agent,  he  would  not  be  permitted  to  introduce  evidence  to 
show  that  the  contract  made  by  the  agent  was  different  from 
the  written  contract.  In  both  these  cases  the  signature  of 
the  agent  is  an  admission  that  the  contents  of  the  writing  are 
true,  and  it  is  this  circumstance  that  makes  the  writing  evi- 
dence. But  where  an  agent  has  been  authorized  to  write 
over  the  signature  of  the  principal  a  contract  already  made, 
it  is  not  enough  to  prove  the  signature  of  the  principal,  and 
the  authority  of  the  agent  to  write  a  contract  over  it;  this 
does  not  make  the  writing  evidence  of  the  contract,  unless 
the  contract  is  to  be  presumed  to  be  anything  the  agent 
pleased  to  write.  It  would  still  be  necessary  to  show  that 
the  agent  had  pursued  his  authority,  and  this  could  be  done 
only  by  showing  what  the  contract  was,  and  comparing  it 
with  the  writing."1 

ner  in  which  Ulen  ».  Kittredge  was  afterwards  referred  to  in  Packard  t>. 
Richardson,  17  Mass.  122,  the  court  do  not  seem  altogether  to  approve  it. 
1  Hodgkins  v.  Bond,  1  N.  H.  287.  See  also  Jackson  ».  Titus,  2 
Johns.  (N.  Y.)  430;  ante,  §  12;  Wood  v.  Midgley,  5  De  G.,  M.  &  G.  41 ; 
Ayres  v.  Probasco,  1 1  Kansas  *  175. 


492  STATUTE   OF  FRAUDS.  [CH.   XVIL 

§  361.  It  is  very  reasonable,  however,  and  has  lately  been 
decided  in  the  Court  of  Exchequer,  that  words  afterward 
introduced  into  a  paper  signed  by  a  party,  or  any  alteration 
in  it,  may  be  considered  as  authenticated  by  a  signature 
already  on  the  paper,  if  it  be  clear  that  they  were  meant  to 
be  so  authenticated,  and  that  the  act  of  signing  after  the 
introduction  of  the  words  is  not  absolutely  necessary.  In- 
deed, the  case  where  this  was  held  (the  circumstances  of 
which  were  somewhat  singular)  went  still  further,  and  held 
the  previous  signature  to  authenticate  the  subsequent  altera- 
tion, though  the  latter  was  made  by  the  plaintiff  himself, 
and  not  by  the  party  signing.  The  declaration  stated,  that 
one  O'Connell  agreed  with  the  plaintiff  to  buy  certain  wines, 
part  for  .£200,  and  part  for  £150,  and  the  defendant  under- 
took to  procure  two  bills,  one  for  each  of  those  sums,  to  be 
accepted  by  O'Connell  on  their  being  drawn  by  the  plaintiff, 
and  delivered  to  the  defendant,  and  to  see  them  paid  at 
maturity.  The  breach  alleged  was  that  he  did  not  see  them 
paid.  The  evidence  showed  that  the  defendant's  engage- 
ment, which  was  in  writing,  was  that  upon  the  plaintiff's 
handing  him  two  drafts  on  O'Connell  for  <£200  and  £146 
respectively,  he  would  get  them  accepted  by  the  defendant 
and  see  them  paid.  It  also  appeared  that  afterward,  the 
true  price  of  the  second  lot  turning  out  to  be  £150  instead 
of  £146,  the  bills  were  drawn  for  the  correct  amounts,  and 
the  defendant  got  them  accepted  and  gave  them  to  the  plain- 
tiff, and  then  wrote  across  the  face  of  his  guaranty  the  follow- 
ing in  his  own  hand :  "  I  have  received  the  two  drafts  (one 
being  for  £150  instead  of  £146,  there  being  an  error  in  the 
invoice  of  £4),  both  accepted  by  Mr.  O'Connell;"  and  the 
plaintiff  signed  this  memorandum,  but  the  defendant  did  not. 
It  was  held  that  the  defendant's  undertaking  was  rightly 
described  as  an  undertaking  to  see  the  two  bills  of  £200  and 
£150  respectively  paid  by  O'Connell,  and  that  the  original 
signature  covered  and  authenticated  the  subsequent  correc- 
tion, as  to  the  amount  of  the  smaller  bill,  within  the  Statute 


CH.    XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  493 

of  Frauds,  although  it  was  in  form  signed,  not  by  the  defend- 
ant, but  by  the  plaintiff.  The  view  taken  by  the  Barons, 
who  confessed  some  difficulty  in  coming  to  their  conclusion, 
is  very  clearly  stated  by  Mr.  Baron  Platt.  He  says :  "  Sup- 
pose that,  after  this  instrument  was  signed,  the  defendant, 
with  his  own  hand,  had  altered  the  £146  into  £150;  there 
could  be  no  doubt  that  there  would  have  been  a  sufficient 
contract  within  the  statute,  without  re-signing  the  agree- 
ment. Then  the  effect  of  this  memorandum,  as  it  seems  to 
me,  is  just  the  same  as  if  the  defendant  had  written  upon  the 
face  of  it,  that '  a  bill  for  £150  has  been  drawn  instead  of 
one  for  £146,  there  being  an  error  as  to  the  amount  of  the 
invoice  price ; '  and  then  for  the  plaintiff  to  have  written 
underneath,  '  I  have  received  the  two  above-mentioned  bills.' 
That  being  in  the  handwriting  of  the  defendant,  on  the  face 
of  the  original  agreement,  seems  to  me  to  justify  us  in  hold- 
ing that  the  transaction  operates  as  a  signature  within  the 
Statute  of  Frauds. "  l 

§  362.  A  further  question,  not  without  difficulty,  on  this 
point  of  signature  is,  whether  the  name  of  the  party  must  be 
actually  signed  to  the  instrument.  In  Selby  v.  Selby,  Sir 
William  Grant,  M.  R.,  held  that  a  letter  from  a  mother  to 
her  son,  beginning  with,  "My  dear  Robert,"  and  concluding 
with,  "Your  affectionate  Mother,''  was  not  signed,  so  as  to 
constitute  a  binding  agreement  on  the  part  of  the  mother, 
within  the  intent  of  the  Statute  of  Frauds.  He  said:  "It  is 
not  enough  that  the  party  may  be  identified.  He  is  required 
to  sign;  there  may  be  in  the  instrument  a  very  sufficient 
description  to  answer  the  purpose  of  identification,  without 
a  signing,  that  is,  without  the  party  having  either  put  his 
name  to  it,  or  done  some  other  act  intended  by  him  to  be 
equivalent  to  the  actual  signature  of  ^he  name."2  With  sub- 
mission to  so  high  a  judicial  authority,  it  may  be  asked, 
whether  such  a  conclusion  as  was  borne  by  the  letter  before 

1  Bluck  v.  Gompertz,  7  Exch.  869,  note. 
8  Selby  v.  Selby,  3  Meriv.  2. 


494  STATUTE  OF  FRAUDS.  [CH.  XVII. 

him  was  not  manifestly  intended  by  the  writer  to  be  equiva- 
lent to  the  actual  signature  of  her  name ;  especially  as  the 
letter  was  sent  to  its  address  as  a  completed  communication. 
In  cases  where  the  initials  only  of  the  party  are  signed,  it  is 
quite  clear  that,  with  the  aid  of  parol  evidence,  which  is 
admitted  to  apply  to  them,  the  signature  is  to  be  held  valid.1 
There  certainly  seems  to  be  some  difficulty  in  distinguishing 
the  cases. 

§  363.  It  has  been  often  attempted  to  carry  the  point  that 
where  a  memorandum  is  inserted  by  the  plaintiff  or  his 
agent  in  the  defendant's  book,  and  at  his  request,  the  latter 
should  be  taken  to  have  signed  it ;  but  the  courts  appear  to 
have  uniformly  rejected  such  notion,  and  with  manifest 
reason.2  It  is  enough  that  there  is  evidence  that  the  party 
sought  to  be  charged  upon  the  contract  regarded  it  as  con- 
cluded by  him ;  the  statute  specifies  actual  signature  as  the 
proper  proof  of  that  fact. 

§  364.  As  regards  more  especially  the  manner  of  signing 
by  an  agent,  it  seems  now  well  settled  that  the  instrument, 
in  order  to  bind  the  principal,  need  not  be  executed  in  his 
name,  or  as  his  act;  but  that  it  is  sufficient  if  it  appear  that 
the  party  signing  acts  as  agent  in  so  doing,  and  with  intent 
to  bind  the  third  party  as  his  principal.3 

§  365.  The  requisition  of  the  statute  in  the  fourth  section 
is  that  the  memorandum  be  signed  by  the  party  to  be  charged. 
And  it  is  now  uniformly  held  that,  under  this  clause,  the 

1  Phillimore  v.  Barry,  1  Camp.  513;  Salmon  Falls  Mfg.  Co.  v.  God- 
dard,  14  How.  (U.  S.)  446;  Barry  v.  Coombe,  1  Pet.  (U.  S.)  640 ;  Sanborn 
v.  Flagler,  9  Allen  (Mass.)  474.    See,  however,  Sweet  v.  Lee,  3  Man.  &  G. 
452;  Hubert  v.  Moreau,  2  Car.  &  P.  528. 

2  Champion  v.  Plummer,  5  Esp.  240;  Graham  v.  Musson,  5  Bing.  N:  R. 
603;  Graham  v.  Fretwell,  3  Man.  &  G.  368;  Barry  v.  Law,   1  Cranch 
(C.  C.)  77;  Newby  v.  Rogers,  40  Ind.  9;  Groover  v.  Warfield,  50  Ga.  644. 

»  Kenworthy  p.  Schofield,  2  Barn.  &  C.  94o;  Wilson  v.  Hart,  7  Taunt. 
295;  Kelner  v.  Baxter,  L.  R.  2  C.  P.  174;  Dykers  r.  Townsend,  24  N.  Y. 
57;  Williams  v.  Bacon,  2  Gray  (Mass.)  387,  per  Merrick,  J. ;  Sanborn  v. 
Flagler,  9  Allen  (Mass.)  474,  per  Hoar,  J.  But  see  Squier  v.  Norris,  1 
Lans.  (N.  Y.)  282  ;  Wheeler  ».  Walden,  17  Neb.  122. 


CH.    XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  495 

signature  of  the  defendant  alone,  or  the  party  who  is  to  be 
charged  upon  the  agreement,  is  sufficient,  although,  as  we 
shall  see  hereafter,  it  is  necessary,  in  another  view,  that  the 
plaintiff,  or  party  who  seeks  to  charge  the  defendant,  be 
designated  in  the  memorandum.1  In  the  seventeenth  section, 
relating  to  sales  of  goods,  etc.,  the  word  parties,  in  the 
plural,  is  used,  and  this  distinction  was  once  urged  in  an 
early  case  in  the  Common  Pleas,2  but  the  court  declined  to 
take  it;3  and  indeed,  as  we  have  remarked  once  or  twice 

1  Laythoarp  v.  Bryant,  2  Bing.  N.  R.  735;  Huddleston  v.  Briscoe,  11 
Ves.  583;  Hatton  v.  Gray,  2  Ch.  Cas.  164;  Seton  v.  Slade,  7  Ves.  265; 
Fowle  v.  Freeman,  9  Ves.   351 ;  Schneider  v.  Norris,  2  Maule  &  S.  286 ; 
Allen  v.   Bennet,  3  Taunt.   169;  Martin  v.  Mitchell,  2  Jac.  &  W.  426; 
Clason  v.  Bailey,  14  Johns.  (N.  Y.)  484;  M'Crea  v.  Purmort,  16  Wend. 
(N.  Y.)  460;  Justice  v.   Lang,  42  N.  Y.  493;  Gage  v.  Jaqueth,  1  Lans. 
(N.  Y.)207;  Penniman  v.  Hartshorn,  13  Mass.  87;  Old  Colony  R.   R. 
Co.  v.  Evans,  6  Gray  (Mass.)  25;  Shirley  v.  Shirley,  7  Blackf.  (Ind.)  452; 
Barstow  v.  Gray,  3  Greenl.  (Me.)  409  ;  Douglass  v.  Spears,  2  Nott  &  M. 
(S.  C  )  207;  Marqueze  v.  Caldwell,  48  Miss.  23;  Newby  v.  Rogers,  40 
Ind  9;  Morin  v.  Martz,  13  Minn.   191;  Reuss  v.  Picksley,  L.  R.  1  Ex. 
342;  Moore  v.  Powell,  25  S.  W.  Rep.  (Tex.)  472;  Slater  v.  Smith,  117 
Mass.  95;  Hodges  v.  Rowing,  58  Conn.  12;  Oliver  v.  Alabama  Gold  Life 
Ins.  Co  ,  82  Ala.  417;  Moses  v.  McClain,  82  Ala.  370 ;  Smith  v.  Jones,  66 
Ga.  338;  Love  v.  Welch,  97  N.  C.  200;  Putnam  v.  Dungan,  89  Cal.  231; 
Guthrie  v.  Anderson,  47  Kansas  383;   Guthrie  r.   Anderson,  49  Kansas 
416 ;  Easton  P.  Montgomery,  90  Cal.  307;  Gardels  v.  Kloke,  36  Neb.  493. 
SeeWinn  v.  Henry,  84  Ky.  48.     But  see  Marcus  v.  Barnard,  4  Rob  (N.Y.) 
219.     It  has  been  held  in  Tennessee,  that  the  memorandum  of  contract 
for  the  sale  of  an  interest  in  land  must  be  signed,  in  all  cases,  by  the  ven- 
dor.    Frazer  p.  Ford,  2  Head  464.     In  Michigan  a  different  rule  prevails. 
Wilkinson  r.  Heavenrich,  58  Mich.  574. 

2  Allen  r.   Bennet,  3  Taunt.  169,  per  Shepherd,  Serjt.,  arguendo.     In 
Wisconsin  the  statute  requires  this.     See  Docter  v.   Hellberg,  65  Wise. 
415. 

»  See  Stapp  v.  Lill,  1  Camp.  242.  In  New  York,  the  Revised  Statutes 
(see  Appendix)  provide  that  in  contracts  for  the  sale  of  land  the  vendor 
shall  always  sign.  Coles  v.  Bowne,  10  Paige  526;  McWhorter  v. 
McMahan,  10  Paige  386;  Champlain  r.  Parish,  11  Paige  405;  National 
Fire  Ins.  Co.  v.  Loomis,  11  Paige  431  ;  Worrall  r.  Munn,  5  N.  Y.  229. 
It  has  been  suggested  that,  possibly,  the  legislature  of  that  State,  by 
simply  providing  that  the  vendor  shall  sign,  and  being  silent  as  to  the 
purchaser,  have  left  the  law  in  such  position  that  the  latter  may  be  bound 
by  an  agreement  which  he  has  not,  though  the  former  has,  signed.  Mil- 
ler v.  Pelletier,  4  E<.lw.  Ch.  102. 


496  STATUTE  OF  FRAUDS.  [CH.  XVII. 

before,  it  would  be  manifestly  unsafe,  even  if  it  were  possible 
with  consistency,  to  base  broad  rules  of  interpretation  upon 
mere  literal  variations  in  the  language  of  different  parts  of 
an  enactment  so  unsystematically  put  together  as  the  Statute 
of  Frauds  and  Perjuries.  That  the  singular  and  plural  of 
the  word  in  question  were  intended  to  be  taken  in  the  same 
way  seems,  moreover,  quite  plain  from  the  addition  of  the 
same  words,  "  to  be  charged, "  after  each ;  those  words  being, 
in  the  seventeenth  section,  merely  redundant,  if  both  parties 
must  sign. 

§  366.  It  has  been  seriously  doubted  by  a  very  eminent 
judge,  whether  an  agreement,  of  which  the  memorandum  was 
signed  by  one  party  only,  should  be  enforced  against  the 
other  in  a  court  of  equity ;  upon  the  ground  that,  if  so,  it 
would  follow  that  the  court  would  decree  a  specific  perform- 
ance when  the  party  called  upon  to  perform  might  be  in  this 
situation,  that  if  the  agreement  was  disadvantageous  to  him 
he  would  be  liable  to  the  performance,  and  yet,  if  advanta- 
geous to  him,  he  could  not  compel  a  performance.1  Notwith- 
standing this  doubt,  however,  the  rule  is  firmly  settled  that 
in  equity  for  obtaining  a  specific  execution,  as  well  as  at  law 
for  recovering  damages,  the  signature  of  the  party  who  makes 
the  engagement  is  all  that  the  statute  requires ;  and  this  is 
put  upon  the  ground,  in  addition  to  the  unqualified  language 
of  the  statute  itself,  that  the  plaintiff  by  his  act  of  filing  the 
bill  has  made  the  remedy  mutual.2  But  a  more  satisfactory 

1  Lawrenson  ».  Butler,  1  Schoales  &  L.  13,  per  Lord  Redesdale.     And 
see  Armiger  v.  Clarke,  Bunbury  111;  Troughton  v.  Troughton,  1  Ves.  Sr. 
86;  Parkhurst  v.  Van  Cortlandt,  1  Johns.  (N.  Y.)  Ch.  273;  Benedict  v. 
Lynch,  1  Johns.  (N.  Y.)  Ch.  370. 

2  Hatton  ».  Gray,  2  Ch.  Cas.  164;  Coleman  v.  Upcot,  5  Vin.  Ab.  528, 
pi.  17;  Flight  v.  Bolland,  4  Russ.  298;  Seton  v.  Slade,  and  Hunter  r. 
Seton,  7  Ves.  265;   Child  v.  Comber,  3  Swanst.   423,  note;   Bowen  r. 
Morris,  2  Taunt.  374;  Lord  Ormond  v.  Anderson,  2  Ball  &  B.  363;  Mar- 
tin v.  Mitchell,  2  Jac.  &  W.  413;  Palmer  v.  Scott,  1  Russ.   &  M.  391: 
Sugden,  Vend.  &  P.   112,  113;    Ballard  v.  Walker,  3  Johns.   (N.   Y.) 
Cas.  60;  Shirley  v.  Shirley,  7  Blackf.   (IndJ  452;  Roget  v.  Merritt,  2 
Caines  (N.  Y.)   117;  Parrish  v.  Koons,  1  Pars.  (Pa.)  Eq.  79;  Lowry 


CH.   XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  497 

ground  is  that  suggested  by  Story,  viz.  :  "The  agreement, 
although  originally  by  parol,  is  now  in  part  evidenced  by 
writing  under  the  signature  of  the  party,  which  is  a  complete 
compliance  with  the  terms  of  the  statute." ]  In  other  words, 
written  contracts  not  being  within  the  purviejv  of  the  statute, 
the  question  is  as  to  the  enforcement  of  an  oral  agreement, 
evidenced  in  writing.  There  are  several  New  York  cases  in 
which  it  is  treated  as  an  open  question,  whether  a  memo- 
randum signed  by  one  party  and  delivered  to  and  accepted  by 
the  other,  as  the  statement  of  the  agreement  between  them, 
might  not  be  binding  upon  the  latter.2  In  none  of  them, 
however,  is  it  found  necessary  to  pass  upon  it,  nor  is  the  reas- 
oning given  upon  which  the  proposed  rule  would  be  sustained. 
With  all  due  respect,  we  may  be  allowed  to  doubt  whether, 
if  applied,  it  would  not  be  a  dangerous  relaxation  of  the 
provision  of  the  law  in  this  particular. 

§  367.  The  statute  does  not  require  the  party's  own  signa- 
ture to  the  memorandum,  but  allows  it  to  be  signed  by  "some 
other  person  thereunto  by  him  lawfully  authorized. "  It  is 
held  that  a  member  of  a  corporation  is  a  competent  agent 
under  this  clause  to  sign  for  the  corporation,3  or  a  partner 
for  his  firm ; 4  and,  generally,  little  difficutly  can  arise  as  to 
who  is  qualified  to  act  as  such  agent,  the  statute  having 
imposed  no  disabilities  in  that  respect  beyond  those  existing 
at  common  law.  One  rule,  however,  has  been  settled,  both 
under  the  fourth  and  seventeenth  sections,  that  neither  party 
can  be  the  other's  agent  to  bind  him  by  signing  the  memo- 

v.  Mehaffy,  10  Watts  (Pa.)  387 ;  Clason  v.  Bailey,  14  Johns.  (N.  Y.)  484; 
Ives  v.  Hazard,  4  R.  I.  14;  Sams  v.  Fripp,  10  Rich.  (S.  C.)  Eq.  447; 
Old  Colony  R.  R.  Co.  r.  Evans,  6  Gray  (Mass.)  25;  Mastin  v.  Grimes,  88 
Mo.  478. 

1  Story  Eq.  Jur.  §  755. 

8  Roget  v.  Merritt,  2  Caines  117  ;  Gale  v.  Nixon,  6  Cow.  445;  Rey- 
nolds v.  Dunkirk  &  State  Line  R.  R.  Co.,  17  Barb.  613.  See  Smith  v. 
Theobald,  86  Ky.  141. 

8  Stoddert  ».  Vestry  of  Port  Tobacco  Parish,  2  Gill  &  J.  (Md.)  227. 

*  Kyle  v.  Roberts,  6  Leigh  (Va.)  495;  Sanborn  v.  Flagler,  9  Allen 
(Mass.)  474. 

32 


498  STATUTE   OF  FRAUDS.  [CH.   XVII. 

randum.1  And  it  makes  no  difference  that  the  pretended 
agent  has  not  himself  any  beneficial  interest  in  the  contract, 
but  stands  in  a  fiduciary  relation  to  third  persons,  so  long  as 
he  is,  in  a  legal  point  of  view,  the  real  party  to,  and  the 
proper  one  to  sue  upon,  the  contract.2 

§  368.  One  of  the  cases  in  which  the  rule  that  neither  oi 
the  parties  to  the  contract  could  be  agent  to  sign  for  the 
other  was  applied,  was  Farebrother  v.  Simmons,  decided  in 
the  Queen's  Bench.  There  the  action  was  on  a  memorandum 
made  by  an  auctioneer,  and  was  brought  in  the  auctioneer's 
own  name,  and  it  was  held  that  his  entry  was  not  evidence 
to  take  the  case  out  of  the  statute.3  In  a  later  case,  Bird  v. 
Boulter,  in  the  same  court,  the  facts  proved'  respecting  the 
proceedings  at  the  auction  sale  were  somewhat  peculiar.  The 
auctioneer  (who  was  the  plaintiff,  as  in  Farebrother  v.  Sim- 
mons) received  the  bids  of  the  buyers,  and  repeated  them 
aloud,  and  when  the  hammer  fell,  one  Pitt,  who  attended  for 
the  purpose,  called  out  the  name  of  the  purchaser,  and,  if  the 
party  assented,  made  an  entry  accordingly  in  the  sale-book. 
In  the  case  on  trial,  the  auctioneer  having  named  the  defend- 
ant as  purchaser  of  a  lot  of  wheat  which  was  knocked  down 
to  him,  Pitt  said  to  him,  "Mr.  Boulter,  it  is  your  wheat;" 
the  defendant  nodded,  and  Pitt  made  the  entry  in  his  sight, 
he  being  then  within  the  distance  of  three  yards.  After 
verdict  obtained  for  the  plaintiff,  it  was  urged  upon  a  motion 
for  nonsuit,  that  signature  by  the  auctioneer's  clerk  was  the 
same  as  signature  by  the  auctioneer,  and  the  rule  insisted 

1  Wright  v.  Dannah,  2  Camp.  203 ;  Farebrother  v.  Simmons,  5  Barn. 
&  Aid.  333;  Rayner  v.   Linthorne,  2  Car.  &  P.  124;  Bailey  i>   Ogden,  3 
Johns.  (N.  Y.)  399  ;  Boardman  v.  Spooner,  13  Allen  (Mass.)  353 ;  Shar- 
man  P.  Brandt,  L.  R.  6  Q.  B.  720;  Adams  v.  Scales.  1  Baxt.  (Tenn.)337. 
See  Murphy  v.  Boese,  L.  R.  10  Exch.  126.     But  see  Snyder  v.  Wolford, 
33  Minn.  175. 

2  Buckmaster  v.  Harrop.  13  Ves.  456;  Smith  v.  Arnold,  5  Mason  414; 
Bent  v.  Cobb,  9  Gray  (Mass.)  397. 

8  Farebrother  v.  Simmons,  5  Barn.  &  Aid.  333;  Robinson  r.  Garth,  6 
Ala.  204.  But  see  Ennis  r.  Waller,  3  Blackf .  (Ind.)  472 ;  Johnson  v. 
Buck,  35  X.  J.  L.  338. 


CH.   XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  499 

upon  that  one  of  the  contracting  parties  could  not  be  agent 
for  the  other,  and  Farebrother  v.  Simmons  cited,  but  the 
verdict  was  sustained.1  The  several  judges,  in  their  opin- 
ions, while  fully  admitting  the  authority  of  that  case,  strongly 
dwelt  upon  a  distinction  to  the  effect  that,  under  the  peculiar 
circumstances  of  the  case  before  them,  Pitt  was  not  merely 
the  auctioneer's  clerk,  but  his  agent  for  taking  down  the 
names  and  also  the  agent  of  the  purchasers,  whom  they  con- 
stituted such  for  the  same  purpose  by  acquiescing  in  his  pro- 
ceedings. But  some  of  the  judges  placed  their  decision  upon 
the  further  ground  that  the  party  who  signed  the  memoran- 
dum was  not  the  plaintiff  of  record.  And  this  seems  to  dis- 
tinguish the  case  satisfactorily  from  Farebrother  v.  Simmons, 
while  it  suggests  an  important  consideration  in  connection 
with  the  rule  laid  down  in  that  case.  For  though  the  entries 
at  an  auction  sale  should  be  really  made  by  the  mere  clerk 
of  the  auctioneer,  still,  in  this  view,  the  auctioneer  could 
read  it  in  evidence  upon  an  action  brought  by  himself.  If 
the  auctioneer  were  in  any  just  sense  a  party  in  interest,  or  a 
party  to  the  contract,  it  would  be  hard  to  admit  the  signature  of 
his  clerk  as  competent  evidence,  his  own  not  being  so.  But 
there  is  a  clear  difference  between  the  invalidity  of  a  memo- 
randum as  signed  by  one  who  had  no  power  to  sign  it,  and 
its  inadmissibility  in  evidence  as  signed  by  a  party  to  the 
record.  The  latter  objection  is  of  a  technical  character,  not 
affecting  the  writing,  but  only  the  remedy  upon  it.  Where 
that  is  escaped  by  the  form  of  the  memorandum,  there  seems 
no  good  reason  why  the  party  entitled  to  sue  upon  it  should 
not  recover.  The  Court  of  Appeals  of  Virginia  have  fully 
upheld  this  distinction,  in  a  case  where  they 'allowed  an 
action  by  a  sheriff  upon  a  memorandum  signed  by  his 
deputy.2 

1  Bird  r.  Boulter,  4  Barn.  &  Ad.  443.   And  see  M urphy  r.  Boese,  L.  R. 
10  Exch   126. 

2  Brent  v.   Green,  6  Leigh  10,  overruling  Carrington   v.  Anderson, 
5  Munf.  32.     The  doctrine  stated  in  the  text  is  also  supported  by  the 
recent  case  of  Bent  r.  Cobb,  9  Gray  (Mass.)  397.     That  was  an  action  of 


500  STATUTE   OF  FRAUDS.  [CH.   XVII. 

§  369.  The  same  person  may  act  as  agent  for  both  parties. 
This  is  shown  by  the  familiar  cases  of  entries  by  brokers  and 
auctioneers,  in  addition  to  which  others  will  be  referred  to 
presently.  In  regard  to  brokers,  we  have  already  had  occa- 
sion to  see  that  they  bind  both  the  buyer  and  the  seller, 
between  whom  they  complete  a  bargain,  by  their  bought  and 
sold  notes  or  by  their  written  book  entry. 1  And  in  England 

contract  by  guardians  on  a  sale  by  auction  of  land  of  their  ward,  pursu- 
ant to  a  license  of  the  judge  of  probate.  One  of  the  plaintiffs  was  auction- 
eer at  the  sale,  and  made  a  memorandum  thereof  in  writing  and  signed 
it  with  his  own  name,  as  "  guardian  and  auctioneer; "  but  the  defendants 
refused  to  accept  a  deed  or  pay  the  price.  It  was  held  that  the  memo- 
randum was  insufficient,  as  being  not  signed  by  the  defendant  or  by  "any 
person  by  him  thereunto  lawfully  authorized."  Bigelow,  J.,  delivering 
the  opinion  of  the  court,  says:  "  The  chief  reason  in  support  of  the  rule, 
that  an  auctioneer,  acting  solely  as  such,  may  be  the  agent  of  both  parties 
to  bind  them  by  his  memorandum,  is  that  he  is  supposed  to  be  a  disin- 
terested person,  having  no  motive  to  misstate  the  bargain,  and  entitled 
equally  to  the  confidence  of  both  parties.  But  this  reason  fails  when  he 
is  the  party  to  the  contract  and  the  party  in  interest  also.  The  purpose 
of  the  statute  was,  that  a  contract  should  not  be  binding  unless  it  was  in 
writing  and  signed  by  the  party  himself  to  be  charged  thereby,  or  by 
some  third  person  in  his  behalf,  not  a  party  to  the  contract,  who  might 
impartially  note  its  contents.  Nor  can  it  make  any  difference,  as  to  the 
power  of  the  vendor  to  make  a  memorandum  binding  on  the  vendee,  that 
the  sale  is  made  by  the  former  in  a  representative  or  fiduciary  character, 
as  an  executor,  administrator,  guardian,  or  trustee.  He  is  still  the  party 
to  the  contract,  the  price  is  to  be  paid  to  him,  he  is  to  deal  with  the 
purchase-money;  his  interest  and  bias  would  naturally  be  in  favor  of 
those  whom  he  represented,  and,  what  is  more  material,  in  case  of  dispute 
or  doubt  as  to  the  terms  of  the  contract,  his  duties  and  interests  would  be 
adverse  to  those  of  the  vendee.  He  would  stand  in  a  relation  which 
would  necessarily  disqualify  him  from  acting  as  agent  of  both  parties. 
We  do  not  mean  to  say  that  a  contract  would  not  be  binding,  made  by  an 
auctioneer,  where,  from  the  form  in  which  it  was  written,  an  action 
might  be  brought  to  enforce  the  contract  in  his  name.  In  such  case,  if 
he  was  only  the  nominal  party  to  the  contract  and  the  record,  not  being 
himself  the  vendor,  and  having  no  interest  in  the  sale  except  as  auction- 
eer, his  memorandum  might  be  sufficient  to  bind  both  parties  to  the 
contract.  But  we  confine  our  opinion  to  the  case  at  bar,  where  the 
auctioneer  was  the  vendor  and  a  party  having  an  interest,  greater  or  less, 
in  the  contract,  as  well  as  a  party  to  it  in  terms."  See  also  Sanborn  v. 
Chainberlin,  101  Mass.  409. 
i  Ante,  §  351. 


CH.   XVII.]        THE   FORM,   ETC.,    OF   THE   MEMORANDUM.  501 

where  the  broker  is  a  known  legal  public  officer,  governed  by 
statute,  and  cannot  act  as  principal  without  subjecting  him- 
self to  a  penalty,  those  who  deal  with  him  are  bound  to  find 
out  who  his  principals  are;  whereas,  in  this  country,  he 
must  be  known  by  the  party  dealing  with  him  to  be  a  broker, 
and  acting  in  that  capacity  and  not  as  principal,  or  his 
memorandum  will  not  bind  such  party  to  the  bargain  with 
his  employer.1  As  to  auctioneers,  though  the  rule  was  once 
denied,  and  its  expediency  has  not  always  been  admitted,  it 
is  fully  settled  by  authority  that  where  at  public  sale,  either 
of  real  estate  or  of  goods  and  chattels,  the  auctioneer  knocks 
down  the  property  to  the  highest  bidder,  he  becomes  his 
agent,  as  he  was  previously  that  of  the  seller,  and  acts  as 
such  in  entering  the  buyer's  name  as  buyer  in  his  sales- 
book,  or  upon  his  catalogue.2  The  rule  applies  equally 
to  public  officers  not  professedly  auctioneers,  but  selling 
property  at  public  auction:  such  as  sheriffs  and  their  depu- 
ties,3 administrators,4  commissioners  acting  under  order  of 

1  Shaw  v.  Finney,  13  Met.  (Mass.)  453.     See  Davis  v.   Shields,  26 
Wend.  (N.  Y.)  341. 

2  Simon  v.  Motives  or  Metivier,  1  W.  Bl.  599;  3  Burr.  1921  ;  Hinde  v. 
Whitehouse,  7  East  558;  Coles  t>.  Trecothick,  9  Ves.  234;  Buckmaster 
v.  Harrop,  7  Ves.  341 ;  Blagden  v.  Bradbear,  12  Ves.  466;  Stansfield  v. 
Johnson,  1  Esp.  101;  Walker  v.  Constable,  1  Bos.  &  P.  306;  Ernmerson 
v.  Heelis,  2  Taunt.  38;  White  i;  Proctor,  4  Taunt.  209;  Kenworthy  P. 
Schofield,  2  Barn.  &  C.  945;  Morton  v.  Dean,  13  Met.  (Mass.)  385;  Gill 
v.  Bicknell,  2  Cush.  (Mass.)  355;  M'Comb  v.  Wright,  4  Johns.  (N.  Y.) 
Ch.  659;    Cleaves  v.  Foss,  4  Greenl.   (Me.)    1;  Inhabitants  of  Alna  ». 
Plummet*,  4  Greenl.  (Me.)  258;  Singstack  v.  Harding,  4  Harr.  &  J.  (Md.) 
186;  Smith  v.  Jones,  7  Leigh   (Va.)  165;  Adams  v.  M'Millan,  7  Port. 
(Ala.)  73;  Gill  v.  Hewett,  7  Bush  (Ky.)   10;  Gordon  v.  Sims,  2  McCord 
(S.  C.)  Ch.  164;  Endicott  ».  Penny,  14  Smedes  &  M.  (Miss.)  144;  An- 
derson v.  Chick,  Bail.  (S.  C.)  Eq.  118;  Parton  r.  Crofts,  16  C.  B.  N.  s.  11; 
Jackens  v.  Nicolson,  70  Ga.  198;  Ansley  v.  Green,  82  Ga.  181;  Springer 
v.  Kleinsorge,  83  Mo.  152. 

8  Christie  v.  Simpson,  1  Rich.  (S.  C.)  Law,  407;  Endicott  r.  Penny, 
14  Smedes  &  M.  (Miss.)  144;  Robinson  r.  Garth,  6  Ala.  204;  Ennis  v. 
Waller,  3  Blackf.  (Tnd.)  472  ;  Brent  r.  Green,  6  Leigh  (Va.)  16;  Carring- 
ton  v.  Anderson,  5  Munf.  (Va.)  32;  Jones  v.  Kolsomo  Association,  77  Ind. 
340  ;  White  v.  Farley,  81  Ala.  563. 

4  Smith  v.  Arnold,  5  Mas.  (C.  C.)  414. 


502  STATUTE    OF   FRAUDS.  [CH.    XVH 

court,  land  commissioners,2  etc.  It  seems,  however,  that 
the  powers  of  an  auctioneer,  in  this  particular,  are  confined  to 
such  persons  as  act,  either  professionally  or  by  authority,  in 
that  capacity ;  and  do  not  extend  to  a  mere  private  agent  of 
the  vendor,  assuming  to  sell  property  at  auction.3  Nor  is  a 
commission  merchant  regarded  as  either  auctioneer  or  broker, 
so  as  to  enable  him  to  bind  the  buyer  of  goods  by  his  memo- 
randum.4 In  regard  to  the  clerk  of  an  auctioneer,  writing 
down  the  name  of  the  buyer  under  his  principal's  direction, 
there  has  been  much  conflict  of  opinion;  but  the  prepon- 
derance of  the  later  authorities  is  in  favor  of  regarding  him 
in  such  cases  as  clothed  with  the  same  powers  as  his  master, 
the  auctioneer.5  It  has  been  decided  that  the  rule  did  not 
cover  the  clerk  of  a  broker,6  but  even  this  seems  now  to  be 
open  to  question.7  It  may  be  doubted  whether  there  is  any 
sound  analogy  between  auctioneers'  and  brokers'  clerks,  in 
this  particular.  In  the  case  of  the  former,  the  authority  to 

1  Jenkins  v.  Hogg,  2  Tread.  (S.  C.)  821 ;  Gordon  t.  Sims,  2  McCord, 
(S.  C.)  Ch.  151;  Hutton  v.  Williams,  35  Ala.  503. 

2  Hart  v.  Woods,  7  Blackf .  (Ind )  5G8.     The  clerk,  entering  a  release 
of  record  in  open  court,  by  verbal  direction,  is  considered  the  agent  of 
both  parties  for  so  doing.     Boykin  ».  Smith,  3  Munf.  (Va.)  102 ;  Huston 
r.  Cincinnati  &  Zanesville  R,  R.  Co.,  21  Ohio  St.  235. 

8  Walker  v.  Herring,  21  Grat.  (Va.)  678;  Anderson  v.  Chick,  Bail. 
(S.  C.)  Eq.  118;  Adams  v.  Scales,  1  Baxt  (Tenn  )  337. 

4  Sewall  p.  Fitch,  8  Cow.  (N.  Y.)  215;  Batturs  v.  Sellers,  5  Harr.  &  J. 
(Md.)  117. 

6  Coles  v.  Trecothick,  9  Ves.  234;  Gosbell  v.  Archer,  2  Ad.  &  E.  500; 
Bird  r.  Boulter,  4  Barn.  &  Ad.  443;  Henderson  v.  Baruewall,  1  Young  & 
J.  387;  Gill  v.  Bicknell,  2  Cush.  (Mass.)  355;  Smith  v.  Jones,  7  Leigh 
(Va.)  1G5;  First  Baptist  Church  of  Ithaca  v.  Bigelow,  16  Wend.  (N.  Y.) 
28;  Frost  r.  Hill,  3  Wend  (N.  Y.)  380;  Doty  v.  Wilder,  15  111.  407; 
Inhabitants  of  Alna  v.  Plummer,  4  Greenl.  (Me.)  258;  Adams  v.  M'Mil- 
lan,  7  Port.  (Ala  )  73;  Brent  r.  Green,  6  Leigh  (  Va.)  10 :  Hart  v.  Woods, 
7  Blackf.  (Ind.)  568.  Contra,  Meadows  v.  Meadows,  3  McCord  (S.  C  ) 
Law.  458;  Entz  v.  Mills,  1  McMull.  (S.  C.)  Law,  453;  Christie  v.  Simp- 
son, 1  Rich.  (S.  C.)  Law  407.  But  see  Peirce  r.  Corf,  L.  R.  9  Q.  B.  210; 
Springer  v  Kleinsorge,  83  Mo.  152. 

6  Henderson   p.   Barnewall,  1   Young  &  J.  387;  Johuson  v.  Mulry,  4 
Rob.  (N.  Y.)  401.     And  see  Boardman  v.  Spooner,  13  Allen  (Mass.)  353. 

7  Townend  v.  Drakeford,  1  Carr.  &  K.  20. 


CH.   XVII.]         THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  503 

sign  for  the  buyer  is,  by  his  bidding  and  allowing  the  property 
to  be  knocked  down,  openly  given  to  the  auctioneer,  who  on 
his  part  merely  uses  the  hand  of  his  clerk  immediately  and 
under  his  own  eye  and  direction,  to  insert  the  name  in  the 
sales-book  or  catalogue,  lii  the  case  of  the  latter,  there 
seems  to  be  a  plain  delegation  of  authority  by  the  broker, 
such  as  the  law  does  not  allow  in  cases  of  agencies  of  that 
description.1 

§  370.  The  agent  must  be  "  thereunto  lawfully  authorized. " 
It  has  been  held  that  one  who  was  acting  at  the  time  as  legal 
attorney  for  the  party  in  whose  behalf  he  signed  the  memo- 
randum, did  not  necessarily  have  power  so  to  sign,  by  virtue 
of  that  relation.2  At  the  same  time,  the  court  by  their 
emphatic  reference  to  the  words  "  thereunto  lawfully  author- 
ized," might  seem  to  imply  that  the  agency  for  the  purpose 
of  signing  an  agreement  under  the  statute,  must  in  all  cases 
be  specifically  given;  but,  in  the  absence  of  any  decision  to 
that  effect,  we  may  well  doubt  whether  a  general  agency  suffi- 
ciently comprehensive  in  its  terms  would  not  be  sufficient; 
though,  of  course,  even  an  actual  signature  by  the  agent  in 
such  a  case  might  be  controlled  by  circumstances  showing 
that  it  was  not  intended  by  the  principals  that  it  should  bind 
them;  as  in  Hubert  v.  Turner,3  where  the  instrument  was 
signed  by  an  agent  whose  general  authority  embraced  his  so 
doing,  but  the  signature  was  followed  by  the  words,  "as  wit- 
ness our  hands,"  on  which  the  court  held  the  defendants 
intended  themselves  to  sign,  and  that  they  were  not  bound. 
Of  course,  the  power  must  embrace  the  act  of  signature;  if 
it  extend  only  to  settling  the  terms  of  the  contract,4  or  tak- 


1  Story  on  Agency,  §§  13,  109;  Blore  v.  Sutton,  3  Meriv.  237. 

2  Bushell  v.  Beavan,  1  Ring.  N.  R.  103. 

»  Hubert  v.  Turner,  4  Scott  N.  R.  486;  and  see  Smith  ».  Webster,  3 
Ch.  Div.  49. 

4  Coleman  v.  Garrigues,  18  Barb.  (X.  Y.)  60;  Rioe  v.  Rawlings,  Meigs 
(Tenn.)  496;  Edwards  v.  Johnson,  3  Houst.  (Del.)  435;  Taylor  v.  Mer- 
rill, 55  111.  52;  Rutenberg  v.  Main,  47  Cal.  213. 


504  STATUTE   OF   FRAUDS.  [CH.   XVII. 

ing  notes,  or  writing  out  the  agreement,1  or  doing  anything 
else  merely  preliminary  to  the  signature,  it  is  insufficient. 

§  370  a.  The  agent  for  signing  may,  in  all  the  cases 
enumerated  in  the  fourth  section,  be  appointed  without  writ- 
ing,2 unless,  -of  course,  the  memorandum  to  be  signed  is  to 
be  sealed  also,  in  which  case  the  power  must  be  conferred  by 
an  instrument  of  equal  dignity.3  The  authority  in  cases  of 

1  Earl  of  Glengal  v.  Barnard,  1  Keen  769.     See  also  Dixon  v.  Broom- 
field,  2  Chitty  205. 

2  Coles  v.  Trecothick,  9  Ves.  250;  Mortlock  v.  Buller,  10  Ves.  292; 
Cliuan  v.  Cooke,  1  Schoales  &  L.  22;  Graham  v.  Musson,  5  Bing.  N.  R. 
603;  Rucker  v.  Cammeyer,  1  Esp.  105;  Wright  v.  Daunah,  2  Camp.  203; 
Greene  v.  Cramer,  2  Con.  &  L.  54;  Inhabitants  of  Alna  v.  Plummer,  4 
Greenl.  (Me.)  258;  McVVhorter  v.  McMahan,  10  Paige  (N.  Y.)  386;  Law- 
r.-iice  v.   Taylor,  5  Hill  (N.  Y.)  107;  Worrall  v.   Munn,   5  N.  Y.   229; 
Hawkins  v.  Chace,  19  Pick.  (Mass.)  502;  Ulen  v.  Kittredge,  7  Mass.  232; 
Yerby  v.  Grigsby,  9  Leigh  (Va.)  387;  Johnson  v.  McGruder,  15  Mo.  365; 
Talbot  v.  Bowen,  1  A.  K.  Marsh.  (Ky.)  436;  Coleman  v.  Bailey,  4  Bibb 
(Ky.)  297;  Curtis  v.  Blair,  4  Cush.  (Miss.)  309;    Johnson  v.  Dodge,  17 
111.  433 ;  Roehl  v.  Haumesser,  114  Ind.  311 ;  Neaves  v.  Mining  Co  ,  90  N.C. 
412;  Campbell  v.  Fetterman's  Fleirs,  20  W.  Va.  398;  Hargrove  v.  Adcock, 
111  N.  C.  166.     But  see  Caperton  v.  Gray,  4  Yerg.  (Tenn.)  563.     Mr. 
Fell  (Merc.  Guar.  Appendix  No.  VI.)  argues  very  forcibly  against  the  pro- 
priety of  this  rule,  but  admits  it  to  be  settled.     Of  course  this  rule  does 
not  hold  where  a  particular  Statute  of  Frauds  specifies  that  the  appoint- 
ment shall  be  in  writing.     See    Linn   v.  McLean,  85  Ala.  250;  Hall  v. 
Wallace,  88  Cal.  434;  Edwards  r.  Tyler,  141  111.  454  ;  Albertson  i».  Ash- 
ton,  102  111.  50  ;  Chappell  v.  McKnight,  108  111.  570,  in  which  case  a  rati- 
fication   must   also  be  in  writing  in  the   absence   of  some   element  of 
equitable  estoppel.    Kozel  v.  Dearlove,  144  111.  23;  Hawkins  v.  McGroarty, 
110  Mo.  546;  Salfield  v.  Sutter  County  Co.,  94  Cal.  546.     But  such   a 
statute  does  not  affect  the  right  of  a  real  estate  agent,  who  has  no  written 
authority  to  sell  a  parcel  of  land,  to  recover  a  commission.     Gerhart  v- 
Peck,  42  Mo.  App.  644. 

3  Blood  v   Hardy,  15  Maine  (3  Shep.)  61 ;  ante,  §  14.     In  a  late  case  of 
appeal  from  the  Exchequer,  the  plaintiff,  a  hop-grower,  having  sent  sam- 
ples of  hops  for  sale  to  N.,  his  factor,  with  instructions  as  to  price,  the 
defendants,  who  were  hop-merchants,  called  at  N.'s  office  to  see  the  sam- 
ples, but  could  not  agree  as  to  price.     Subsequently,  on  the  same  day,  the 
defendants  met  the  plaintiff,  and,  after  a  conversation   about  the  hops, 
they  went  with  him  to  N.'s  office,  and  there  in  N.'s  presence,  made  the 
plaintiff  an  offer  for  the  hops,  which,  in  the  presence  and  hearing  of  the 
defendants,  the   plaintiff  asked  N.  whether  he  should  accept,  and  was 


CH.   XVII.]        THE   FORM,   ETC.,   OF   THE   MEMORANDUM.  505 

contracts,  however,  may  be  given  subsequently  to  the  signa- 
ture, by  parol  ratification  of  it.1 

§  370  b.  One,  who  as  agent  has  made  an  oral  contract  may 
not,  after  his  agency  has  terminated,  bind  his  former  prin- 
cipal by  reducing  the  contract  or  a  memorandum  of  it  to 
writing.2 

§  370  c.  In  many  of  the  American  States  the  Statute  of 
Frauds  does  not  in  terms  provide  that  the  memorandum  may 
be  signed  by  the  agent  of  the  party  to  be  charged.  The  lan- 
guage of  the  Tenterden  Act  is  that  there  shall  be  writing 
"signed  by  the  party  to  be  charged,"  and  it  is  said  that, 
because  of  that  explicit  provision,  the  writing  under  the 
Tenterden  Act  cannot  be  signed  by  the  agent  of  the  party  to 
be  charged.3  By  the  same  reasoning,  the  memorandum  of 
agreement  under  29  Car.  II.  cannot  be  signed  by  the  agent 
unless  that  statute  as  re-enacted  expressly  so  provides.  The 
question  does  not  appear  to  have  been  raised  in  any  of  the 
American  States  where  that  statute  as  re-enacted  fails  to 
provide  explicitly  for  signature  by  agent. 

advised  by  him  so  to  do.  Thereupon  N.  wrote  out  in  his  book  a  sale-note 
in  duplicate,  each  part  of  which  was  dated  "  19th  October."  At  the  re- 
quest of  the  defendants,  the  date  in  each  part  was,  with  the  plaintiff's 
consent,  altered  by  N.  to  the  "20th  October,"  in  order  to  give  defendant 
a  longer  lime  for  payment,  and  then  one  part  so  altered  was  torn  from  the 
book  by  N.  and  handed  to  defendants,  who  took  it  away  and  kept  it.  In 
an  action  by  plaintiffs  against  defendants  for  not  accepting  the  hops,  it 
was  held,  reversing  the  decision  of  the  Court  of  Exchequer  (4  L.  T.  N.  8. 
255).  that  there  was  evidence  for  the  jury  of  the  intention  of  the  parties 
that  N.  should  be  their  agent  for  the  purpose  of  making  a  written  record 
of  a  contract  binding  upon  both  of  them.  Durrell  v.  Evans,  1  Hurlst.  & 
C.  174.  But  see  Murphy  v.  Boese,  L.  R.  10  Exch.  126. 

1  Maclean  v.  Dunn,  4  Bing.  722;  Gosbell  v.  Archer,  2  Ad.  &  E.  500; 
Sugden,  Vend.  &  P.  134;  Holland  ».  Hoyt,  14  Mich.  238:  Hankins  v. 
Baker,  46  N.  Y.  666;  Fitzmaurice  v.  Bayley,  6  El.  &  B.  868;  Heffron  v. 
Armsby,  61  Mich.  505;  Swisshelm  v.  Swissvale  Laundry  Co.,  95  Pa.  St. 
367;  Tynan  v.  Dulling,  25  S.  W.  Rep.  (Tex.)  465. 

8  Elliot «'.  Barrett.  144  Mass.  256. 

8  Nevada  Bank  v.  Portland  National  Bank,  59  Fed.  Rep.  342 ;  citing 
Hyde  v.  Johnson,  3  Scott  289;  Clark  v.  Alexander,  8  Scott  N.  R.  147; 
Williams  v.  Mason,  28  Law  T.  (N.  8.)  232. 


506  STATUTE  OF  FRAUDS.          [CH.  XVIII. 


CHAPTER  XVIII. 

THE  CONTENTS   OF  THE   MEMORANDUM. 

§  371.  HAVING  in  the  last  chapter  inquired  of  what  the 
memorandum  required  by  the  statute  may  or  must  consist, 
we  come  now  to  the  question,  what  the  memorandum  must 
contain.  Upon  this  the  general  rule  is  that  it  must  contain 
the  essential  terms  of  the  contract,  expressed  with  such  a 
degree  of  certainty  that  it  may  be  understood  without  recourse 
to  parol  evidence  to  show  the  intention  of  the  parties.1  It  is 
proposed  in  the  present  chapter  to  consider  in  detail  the 
several  matters  which  it  has  been  determined  the  writing 
must  contain;  observing,  as  we  proceed,  the  degree  of  cer- 
tainty or  fulness  required  in  their  statement,  and  the  extent 
to  which  parol  evidence  is  admitted  to  aid  in  the  interpreta- 
tion of  the  memorandum ;  and  also  to  inquire  how  far  the 
statute  allows  effect  to  oral  agreements  of  parties  made  sub- 
sequently to  the  execution  of  a  memorandum,  for  the  purpose 
of  modifying  or  discharging  the  contract. 

§  371  a.  In  the  first  place,  assuming  that  there  is  a  com- 
pleted oral  contract,  the  note  or  memorandum  must  contain 
the  terms  of  the  contract  as  completed.2  If  it  tend  to  falsify 

i  2  Kent,  Com.  511;  Abeel  v.  Radcliff,  13  Johns.  (N.  Y.)  297,  and 
compare  Holms  v.  Johnston,  12  Heisk.  (Tenn.)  155.  The  ordinary  inci- 
dents only  of  an  agreement,  as,  for  instance,  the  usual  covenants  and 
other  ingredients  of  a  complete  transfer  in  the  case  of  a  sale  of  land,  will 
be  supplied  by  the  court.  Barry  v.  Coombe,  1  Pet.  (U  S.)  640 ;  Symes  v. 
Hutley,  2  L.  T.  N.  s.  509;  Scarritt  v.  St.  John's  M.  E.  Church,  7  Mo.  App. 
174;  Sheley  v.  Whitman,  67  Mich.  397;  Messmore  v.  Cunningham,  78 
Mich.  623;  Frazer  v.  Howe,  106  111.  563. 

8  Whaley  r.  Bagnel,  1  Bro.  P.  C.  345;  Gaunt  v.  Hill,  1  Stark.  10; 
Stratford  v.  Bosworth,  2  Ves.  &  B.  341;  Roberts  v.  Tucker,  3  Exch.  632; 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  507 

the  contract  sued  upon,  as  by  showing  conditions  and  stipu- 
lations that  have  not  been  made  to  appear,1  or  if,  referring  to 
the  contract,  it  annex  conditions  to  it  or  otherwise  make 
variations  in  it,2  it  has  no  effect  as  a  memorandum  of  the 
contract  alleged.  In  short,  where  the  plaintiff  proposes  to 
rely  upon  a  written  admission  of  the  contract,  with  the 
defendant's  signature,  he  must  produce  such  a  writing  as 
will  tend  to  prove  and  not  disprove  the  existence  of  the  con- 
tract alleged,3  as  a  concluded  agreement  between  the  parties. 
§  372.  It  is  necessary  that  the  memorandum  should  show 
who  are  the  parties  to  the  contract  by  some  reference  suffi- 
cient to  identify  them.  Upon  this  point  the  leading  case  is 
Champion  v.  Plummer,  decided  in  the  Exchequer  Chamber 
in  1805,  where  the  memorandum  was  duly  signed  by  the 
vendor,  defendant,  but  the  name  of  the  purchaser  nowhere 
appeared.  The  plaintiff  being  nonsuited  below,  a  rule  was 
obtained  to  set  the  nonsuit  aside  and  for  a  new  trial.  Sir 
James  Mansfield,  C.  J.,  said:  "How  can  that  be  said  to  be 
a  contract  or  memorandum  of  a  contract  which  does  not  state 
who  are  the  contracting  parties  ?  By  this  note  it  does  not  at 
all  appear  to  whom  the  goods  were  sold.  It  would  prove  a 
sale  to  any  other  person,  as  well  as  to  the  plaintiff.  There 
cannot  be  a  contract  without  two  parties,  and  it  is  customary 
in  the  course  of  business  to  state  the  name  of  the  purchaser 

Barry  r.  Coombe,  1  Pet.  (U.  S.)  640;  Ballingall  v.  Bradley,  16  111.  373; 
Hazard  i>.  Day,  14  Allen  (Mass.)  487;  Oakman  r.  Rogers.  120  Mass.  214; 
Winn  v.  Bull,  7  Ch.  Div.  29;  Rossiter  v.  Miller,  L.  R.  3  H.  L.  1124. 

1  Cooper  v.  Smith,  15  East  103;  Richards  r.  Porter,  6  Barn.  &  C.  437. 
See  Archer  v.  Baynes,  5  Exch.  625:  Elliot  v.  Barrett,  144  Mass.  256. 

2  Smith  ».  Surman,  9  Barn.  &  C.  561;  Nesham  v.  Selby,  L.  R.  7  Ch. 
App.  406;  Williams  v.  Bacon,  2  Gray  (Mass  )  387 ;  Jpuness  v.  Mt.  Hope 
Iron  Co.,  53  Me.  20;  Hastings  v.  Webber,  142  Mass.  232. 

8  See  Bailey  r.  Sweeting,  30  L.  J.  C.  P.  152,  per  Erie,  C.  J. ;  Rossiter 
v.  Miller,  5  Ch.  Div.  648;  McLean  v.  Nicoll,  7  Jur.  N.  s.  999,  per  Mar- 
tin, B. ;  Williams  v.  Morris,  95  U.  S.  444  ;  Munday  v.  Asprey,  L.  R.  13 
Ch.  D.  855;  Williams  v.  Smith,  37  N.  E.  Rep.  (Mass.)  455;  Coe  ». 
Tough,  116  N.  Y.  273  ;  Hussey  v.  Home- Payne,  4  App.  Cas.  311.  This 
principle  seems  not  to  have  been  observed  in  Linsley  v.  Tibbals,  40  Conn. 
522. 


508  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

as  well  as  the  seller,  in  every  bill  of  parcels.  This  note  does 
not  appear  to  nie  to  amount  to  any  memorandum  in  writing 
of  a  bargain."  And,  the  rest  of  the  court  concurring,  the 
rule  was  discharged.1  On  the  same  principle,  it  is  held 
that  a  memorandum  of  guaranty  is  not  sufficient  unless 
the  party  whose  debt  is  to  be  answered  for  is  disclosed 
therein. 2 

§  373.  This  principle  has  been  uniformly  assented  to  by 
the  courts  both  of  England  and  this  country.3  As  to  the 
identification,  it  is  sufficient  if,  upon  the  memorandum,  in 
addition  to  its  having  the  signature  of  the  party  to  be 
charged,  it  appear  with  reasonable  certainty  who  the  other 
party  to  the  contract  is.4  Thus,  a  letter  addressed  by  the 
defendant  to,  or  received  by  him  from,  the  plaintiff,  and 
sufficiently  connected  with  the  other  writings  relied  upon  as 
constituting  the  memorandum,  may  be  evidence  to  show  the 

1  Champion  v.  Plummer,  1  Bos.  &  P.  N.  R.  252.     See  McElroy  v.  Seery, 
61  Md.  389;  Brown  v.  Whipple,  58  N.  H.  229  ;  Coombs  v.  Wilkes,  L.  R. 
3  Ch.  D.  1891,  77;  Lincoln  v.  Erie  Preserving  Co.,  132  Mass.  129. 

2  Williams  v.  Lake,  2  El.  &  E.  349. 

»  Jacob  v.  Kirk,  2  Moo.  &  R.  221;  Wheeler  v.  Collier,  Moo.  &  M.  123; 
Allen  v.  Bennet,  3  Taunt.  169;  Waterman  v.  Meigs,  4  Cush.  (Mass.)  497; 
Nichols  v.  Johnson,  10  Conn.  192;  Sherburne  v.  Shaw,  1  N.  H.  157; 
Webster  v.  Ela,  5  N.  H.  540;  Farwell  v.  Lowther,  18  111.  252;  Sheid  v. 
Stamps,  2  Sneed  (Tenn.)  172.  A  promise  in  writing,  signed,  to  pay  one 
unnamed  who  shall  furnish  goods  to  the  writer,  or  to  a  third  person,  will 
become  a  binding  contract  with  any  one,  whosoever  he  may  be,  who  shall 
accept  the  promise  in  writing  and  furnish  the  goods.  Williams  v.  Byrnes, 
8  L.  T.  N.  s.  69.  And  see  Griffin  v.  Rembert,  2  S.  C.  410 ;  Mentz  v.  New- 
witter,  122  N.  Y.  491;  O'Sullivan  v.  Overton,  56  Conn.  102. 

4  Grafton  v.  Cummings,  99  U.  S.  100 ;  Thornton  ».  Kelly,  11  R.  I. 
498;  Gowen  v.  Klous,  101  Mass.  449.  See  Jones  v.  Dow,  142  Mass.  130. 
Upon  this  point  there  has  been  some  variance  in  later  English  decisions, 
as  to  what  is  sufficient  certainty  of  designation.  See  Sale  v.  Lambert, 
L.  R.  18  Eq.  1;  Potter  v.  Duffield,  L.  R.  18  Eq.  4;  Commins  v.  Scott, 
L.  R.  20  Eq.  11;  Beer  v.  London  &  Paris  Hotel  Co.,  L.  R.  20  Eq.  412; 
Rossiter  v.  Miller,  5  Ch.  D.  648,  on  appeal  L.  R.  3  H.  L.  1124;  Catling 
v.  King,  5  Ch.  D.  660;  Thomas  v.  Brown,  1  Q.  B.  Div.  714;  Jarrett  v. 
Hunter,  L.  R.  34  Ch.  D.  182;  McGovern  v.  Hern,  153  Mass.  308;  Lewis 
v.  Wood,  153  Mass.  321;  Lash  v.  Parlin,  78  Mo.  39. 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  509 

plaintiff  to  be  a  party  to  the  contract.1  And  the  fact  that 
the  person  to  whom  such  a  letter  was  addressed  was  the 
agent  of  the  plaintiff,  and  received  it  in  that  character,  may 
be  proved  by  parol  evidence,  to  show  the  plaintiff  to  be  the 
real  promisee.2  Where  the  particulars  of  an  auction  sale, 
upon  which  the  memorandum  charging  the  purchaser  was 
indorsed,  stated  that  the  sale  was  "by  order  of  Mr.  W. 
Laythoarp,  the  proprietor,"  this  was  held  a  sufficient  indica- 
tion of  the  plaintiff.3  And  in  a  case  where  an  order  for 
goods  was  written  and  signed  by  the  seller's  agent  in  a  book 
belonging  to  the  buyer,  Mansfield,  C.  J.,  said,  if  it  were  "a 
regular  order-book,  and  supposing  that  the  person  to  whom 
it  belonged,  the  place  in  which  it  was  kept,  and  the  purpose 
for  which  it  was  employed  were  consonant,  it  would  be  no 
great  stretch  to  say,  this  was  a  ground  for  inferring  that 
these  entries  were  made  by  the  authority  of  the  owner  of  the 
book,  for  the  purpose  of  evidencing  the  sale;"  but  there  was 
other  evidence  in  the  case  that  the  plaintiff  was  the  buyer.4 

1  Jacob  v.  Kirk,  2  Moo.  &  R.  221 ;  Allen  v.  Bennet,  3  Taunt.  169  ; 
Williams  v.  Jordan,  6  Ch.  Div.  517.     And  see  ante,  §  347. 

2  Bateman  v.  Phillips,  15  East  272.     And  see  Williams  v.  Bacon,  2 
Gray  (Mass.)  387;  Thayer  v.  Luce,  22  Ohio  St.  62;  Walsh  r.  Barton,  24 
Ohio  St.  28;  Beer  v.  London  &  Paris  Hotel  Co.,  L.  R.  20  Eq.  412.     But 
where  a  letter  of  credit  was  addressed  by  mistake  to  John   and  Joseph, 
and  delivered  to  John  and  Jeremiah,  it  was  held  that  John  and  Jeremiah 
could  not  sustain  an  action  upon  it  for  goods  furnished  by  them  to  the 
bearer  on  the  strength  of  it ;  for   there  was  no  ambiguity,  patent  or 
latent,  in  the  case,  nor  any  fraud  upon  the  plaintiffs,  nor  (as  they  had 
observed  the  misdirection  and  taken  the  risk  of  its  materiality)  any  mis- 
take on  their  part.     Grant  r.  Naylor,  4  Cranch  (U.  S.)  224;  Huntington 
r.  Knox,  7  Cush.  371 ;  Brings  v.  Partridge,  64  N.  Y.  357;  Neaves  v.  Min- 
ing Co.,  90  X.   C.  412;  Higgins  v.  Senior,  8   M.  &  W.   834;  Mantz  r. 
McGuire,  52  Mo.   App.   136;  Kelley  v.  Thuey,  102  Mo.  529.     But  see 
Clampet  r.  Bells,  39  Minn.  272;  Jarrett  v.  Hunter.  L.  R.  34  Ch.  D.  182. 

8  Laythoarp  v.  Bryant,  2  Bing.  N.  R.  735. 

4  Allen  v.  Bennet,  3  Taunt.  169.  Where  the  names  of  the  plaintiffs 
(vendors)  appeared  upon  the  titlepage  of  their  order-book  in  which  the 
defendant's  order  was  written,  and  signed  by  him,  it  was  held  sufficient  in 
Sari  v.  Bourdillon,  1  C.  B.  x.  s.  188.  See  also  Jsewell  t>.  Radford,  L.  R. 
3  C.  P.  52;  Harvey  r.  Stevens,  43  Vt.  653. 


510  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

§  374.  It  has  been  said  that  the  mere  appearance  of  the 
plaintiff's  name  in  the  memorandum  is  not  sufficient,  if  it 
does  not  appear  as  that  of  the  promisee,  or  party  to  whom 
the  defendant  is  bound,  and  that  such  character  cannot  be 
affixed  by  parol  evidence  to  an  otherwise  ambiguous  insertion 
of  the  name.1  This  point,  among  others,  was  expressly  held 
by  Mr.  Justice  Kent,  in  an  action  on  the  following  memo- 
randum: "J.  Ogden  &  Co.  Bailey  &  Bogart.  Brown,  12|; 
White,  16i,  60  and  90  days.  Debenture  part  pay ; "  one  of 
his  objections  to  its  sufficiency  being  that  no  person  could 
ascertain  from  it  which  of  the  parties  was  buyer  and  which 
was  seller.2 

§  375.  A  decision  of  much  consideration  by  the  Supreme 
Court  of  the  United  States,  however,  seems  to  stand  opposed 
to  this  rule.3  The  memorandum  there  relied  upon  was  as 
follows :  "  Sept.  19,  W.  W.  Goddard,  12  mos.  300  bales.  S. 
F.  drills,  7^.  100  cases  blue  do.,  8£.  Credit  to  commence," 
etc.,  and  signed  "R.  M.  M.  ;  W.  W.  G."  The  former  ini- 
tials appeared  by  parol  evidence  to  be  those  of  the  agent  of 
the  plaintiff.  In  the  opinion  delivered  on  behalf  of  the 
majority  of  the  court,  in  favor  of  the  sufficiency  of  the  memo- 
randum, no  attention  appears  to  be  paid  to  the  uncertainty 
upon  the  face  of  the  writing  as  to  who  was  buyer  and  who 
was  seller  in  the  transaction;  a  point  which  Mr.  Justice 
Curtis,  in  his  dissenting  opinion,  urges  with  great  force  of 
reasoning  and  a  full  citation  of  the  authorities. 

§  375  a.  In  an  English  case,4  the  names  of  both  parties 
appeared  in  the  memorandum,  but  it  did  not  show  which  was 
buyer  and  which  was  seller.  The  full  court  sustained  the 

1  Champion  v.  Plummer,  1  Bos.  &  P.  N.  R.  252;  Sherburne  v.  Shaw, 
1  N.  H.  157;  Nichols  v.  Johnson,  10  Conn.  192;  Osborn  v.  Phelps,  19 
Conn.  63. 

2  Bailey  r.  Ogden,  3  Johns.  (N.  Y.)  399.  See  also  Vandenbergh  v. 
Spooner,  L  R.  1  Exch.  316;  Breckinridge  v.  Crocker,  78  Cal.  529. 

«  Salmon  Falls  Mfg.  Co.  v.  Goddard/14  How.  (U.  S.)  446.  See  Graf- 
ton  v.  Cummings,  99  U.  S.  100 ;  Wills  v.  Ross,  77  Ind.  1. 

4  Newell  v.  Radford,  L.  R.  3  C.  P.  52. 


CH.   XVIII.]          THE   CONTENTS   OF   THE   MEMORANDUM.  511 

admission  of  parol  evidence  to  show  the  occupation  of  each 
party,  in  aid  of  the  interpretation  of  the  memorandum  in 
this  respect.  In  the  case  from  the  Supreme  Court  of  the 
United  States  cited  in  the  preceding  section,  evidence  was 
admitted,  of  the  fact  that  a  bill  of  parcels  detailing  the  pur- 
chases was  made  out  and  sent  to  the  purchaser,  and  accepted 
as  such  by  him,  and  this  was  allowed  on  the  ground  that  it 
would  throw  light  on  the  ambiguities  of  the  memorandum.1 
From  these  cases,  it  seems  that  the  later  authorities  allow 
the  introduction  of  parol  evidence  in  this  case,  as  in  others, 
to  apply  the  writing  relied  on,  as  one  made  with  reference  to 
and  in  recognition  of  the  contract  sued  on.2 

§  376.  The  memorandum  must  also  contain  the  express 
stipulations  of  the  contract.  Thus,  it  must  contain  the  price 
agreed  to  be  paid  for  property  sold  where  the  contract  con- 
tained a  stipulation  as  to  price,3  and  when  the  memorandum 

1  Ante,  §  350. 

2  Harvey  v.  Stevens,  43  Vt.  653;  Mann  v.  Higgins,  83  Cal.  66;  Breck- 
inridge  v.  Crocker,  78  Cal.  529.     But  see  Grafton  v.  Cummings,  99  U.  S. 
100;  Lee  v.  Hills,  66  Ind.  474;  Clampet  v.  Bells,  39  Minn.  272. 

8  Blagden  ».  Bradbear,  12  Ves.  466;  Clerk  v.  Wright,  1  Atk.  12; 
Bromley  v.  Jefferies,  2  Vern.  415  ;  Elmore  v.  Kingscote,  5  Barn.  &  C.  583; 
Ide  v.  Stanton,  15  Vt.  685  ;  Norris  v.  Blair,  39  Ind.  90;  McElroy  v.  Buck, 
35  Mich.  434;  Williams  v.  Morris,  95  U.  S.  444;  Smith  v.  Arnold,  5  Mas. 
(C.  C.)  414;  Buck  ».  Pickwell,  27  Vt.  157;  Barickman  v.  Kuykendall, 
6  Blackf.  (Ind.)  21;  M'Farson's  Appeal,  11  Pa.  St.  503;  Soles  v.  Hick, 
man,  20  Pa.  St.  180;  Kay  ».  Curd,  6  B.  Mon.  (Ky.)  100;  Parker  v.  Bod- 
ley,  4  Bibb(Ky  )  102;  Ellis  v.  Deadman,  4  Bibb.  (Ky.)  466;  Kinloch  v. 
Savage,  Speers  (S.  C.)  Eq.  470;  Goodman  v.  Griffiths,  1  Hurlst.  &  N. 
574 ;  Powell  t>.  Lovegrove,  8  De  G.,  M.  &  G.  357 ;  Wright  v.  Cobb,  5 
Sneed  (Tenn.)  143;  Farwell  v.  Lowther,  18  111.  252;  Sheid  v.  Stamps,  2 
Sneed  (Tenn.)  172;  Ives  v.  Hazard,  4  R.  I.  14;  Webster  v.  Brown,  67 
Mich.  328 ;  Hanson  v.  Mareh,  40  Minn.  1  ;  Phillips  v.  Adams,  70  Ala. 
373;  Grace  v.  Denison,  114  Mass.  16.  The  records  of  a  corporation, 
showing  the  plaintiff's  appointment  as  their  engineer,  to  serve  a  year 
from  a  future  day,  have  been  held  sufficient  for  the  plaintiff's  recovery  of 
the  compensation  agreed,  although  the  record  did  not  show  that  compen- 
sation. Chase  v.  City  of  Lowell,  7  Gray  (Mass  )  33.  In  Carroll  r.  Powell, 
48  Ala.  298,  it  was  held  that  the  memorandum  of  a  sale  of  land  at  public 
auction  must  state  whether  the  sale  was  for  cash  or  on  .credit;  but  see 
Lewis  v.  Wells*  50  Ala.  198. 


512  STATUTE   OF   FRAUDS.  [CH.   XVIII. 

states  one  price,  no  recovery  can  be  had  if  it  be  shown  that 
the  parties  had  really  agreed  for  another ;  for  the  true  con- 
tract is,  as  to  one  of  its  essential  elements,  left  unsupported, 
the  memorandum  being  shown  to  be  not  an  accurate  state- 
ment of  the  contract  which  the  parties  made. 1 

§  377.  If  no  price  is  named  by  the  parties,  the  memo- 
randum may  be  silent  in  that  respect.  If  the  property  was 
sold  for  what  it  was  reasonably  worth,  that  fact  need  not  be 
stated  in  the  memorandum.  In  Acebal  v.  Levy,  in  the  Court 
of  Common  Pleas,  Tindal,  C.  J.,  in  the  course  of  the  opinion 
which  he  delivered  for  the  court,  expressed  a  doubt  whether 
this  would  be  so  in  the  case  of  executory  contracts  of  sale, 
i.  e.,  contracts  of  sale  and  delivery  where  the  property  is 
still  in  the  possession  and  control  of  the  vendor.2  But  in 
Hoadly  v.  McLaine,  a  few  months  later  in  the  same  court, 
the  very  question  was  presented,  and  Chief  Justice  Tindal 
concurred  in  the  decision  that  even  in  the  case  of  an  execu- 
tory contract,  where  no  price  was  named  in  the  contract, 
none  need  be  named  in  the  memorandum.3 

§  378.  It  is  obvious  that  the  statute  will  be  satisfied  by  a 
statement  as  to  what  the  parties  stipulated  was  the  price  to 
be  paid,  although  they  mentioned  no  specific  sum;  as,  for 
instance,  if  the  agreement  is  to  pay  a  price  to  be  settled  by 
arbitration,4  or  to  pay  the  same  for  which  the  property  had 
been  previously  purchased.6  It  has  been  held  that  an  order 

1  Kennedy  v.  Gramling,  33  S.  C.  367. 

2  Acebal  v.  Levy,  10  Bing.  376. 

8  Hoadly  v.  M'Laine,  10  Bing.  482,  cited  as  law  by  Wilde,  C.  J.,  in 
Valpy  v.  Gibson,  4  C.  B.  837.  In  Johnson  r.  Ronald,  4  Munf.  (Va.)  77, 
the  rule  as  to  price  seems  to  have  been  overlooked,  for  the  court  admitted 
evidence  that  a  certain  price  had  been  agreed  upon,  and  then  received  as 
sufficient  a  memorandum  that  was  silent  on  the  subject.  The  rule  that 
the  memorandum  must  state  the  price  as  one  of  the  essential  terms  of  a 
contract  of  sale  seems  to  be  not  recognized  in  Missouri.  Ellis  v.  Bray, 
79  Mo.  227,  and  cases  cited.  So  in  North  Carolina,  see  Thornburg  r. 
Masten,  88  N.  C.  293. 

*  Cooth  v.  Jackson,  6  Ves.  12;  Brown  v.  Bellows,  4  Pick.  (Mass.)  178 ; 
Norton  v.  Gale,  95  111.  533. 

6  Atwood  v.  Cobb,  16  Pick.  (Mass.)  227. 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  513 

for  goods  "  on  moderate  terms  "  sufficiently  expressed  the 
amount  to  be  paid ; 1  that  being  the  stipulation  made  by  the 
parties. 

§  379.  Where  the  memorandum  itself  states  that  the 
price  has  been  paid  or  received,  the  amount  need  not  be  set 
forth ;  as  in  such  case  the  price  is  not  a  part  of  the  contract 
to  be  performed.2 

§  380.  For  further  illustration  of  the  rule  that  the  memo- 
randum must  sufficiently  state  the  price  agreed,  attention 
may  be  directed  to  a  class  of  cases  where  evidence  was 
admitted  of  trade  usages  or  customs,  to  show  that  abbrevi- 
ated and  apparently  ambiguous  statements  of  price  had  a 
recognized  meaning  in  the  trade,  and  were  consequently  a 
sufficient  statement  of  the  price  agreed  to  be  paid.  Thus, 
where  a  sold -note  purported  to  be  of  "18  pockets  of  hops  at 
100s. , "  parol  evidence  was  admitted  to  show  that  the  100s. 
was  understood  in  the  trade  to  mean  the  price  per  cwt.3  And 
so  with  the  various  ambiguities  of  this  nature  presenting 
themselves  in  brief  notes  of  mercantile  contracts,  which  are 
generally  composed,  to  use  the  language  of  a  learned  judge, 
in  "a  sort  of  mercantile  short-hand,  made  up  of  few  and 
short  expressions. "  * 

§  381.  The  rule  that  the  memorandum  of  a  contract  of 
sale  must  exhibit  the  price  agreed  to  be  paid,  is  not  quite 
coextensive  with  the  proposition  which  we  shall  presently 
have  to  examine,  that  every  memorandum  under  the  fourth 
section  must  exhibit  the  consideration  on  which  the  engage- 
ment of  the  party  to  be  charged  is  founded.  In  Egerton  v. 

1  Ashcroft  r.  Morrin,  4  Man.  &  G.  450.     But  see  Ashcroft  v.  But- 
terworth,  136  Mass.  511. 

2  Fugate  v.  Hansford,  3  Litt.  (Ky.)  262;  Holman  v.  Bank  of  Norfolk, 
12  Ala.  369. 

8  Spicer  v.  Cooper,  1  Q.  B.  424.  See  Salmon  Falls  Mfg.  Co.  v.  God- 
dard,  14  How  (U.  S.)  446;  Heideman  v.  Wolfstein,  12  Mo  App.  366. 

4  Parke,  B.,  in  Marshall  v.  Lynn,  6  Mees.  &  W.  118.  But  see  North 
i».  Mendel,  73  Ga.  400;  Mohr  v.  Dillon,  80  Ga.  572;  Wilson  v.  Coleman, 
81  Ga.  297;  Ansley  v.  Green,  82  Ga.  181. 

33 


514  STATUTE   OF   FRAUDS.  [CH.   XVIIL 

Mathews,  the  memorandum  sued  upon  was  of  a  contract  for 
the  purchase  of  a  quantity  of  cotton,  and  expressed  that  the 
defendants  agreed  to  give  the  plaintiff  "  19c?.  per  Ib.  for  30 
hales  of  Smyrna  cotton,"  etc.  ;  and  the  objection  was  taken 
on  behalf  of  the  defendants,  that  no  consideration  for  their 
promise  appeared  in  the  memorandum.  At  the  trial  the 
plaintiff  was  nonsuited ;  but,  on  a  motion  for  setting  aside 
the  nonsuit,  the  attention  of  the  judges  was  called  to  the 
difference  of  phraseology  between  the  fourth  and  seventeenth 
sections,  the  one  using  the  word  "bargain,"  and  the  other 
the  word  "agreement,"  and  it  would  appear  that  their  deci- 
sion granting  the  motion  was  in  some  measure  based  upon 
that  difference ;  taking  the  view  that  the  force  of  the  former 
word  did  not,  like  that  of  the  latter,  require  the  statement 
of  the  consideration.1  Subsequently,  in  the  case  of  Saunders 
v.  Wakefield,  where  the  action  was  on  a  written  guaranty, 
and  the  question  was  whether  it  was  sufficient  without  having 
the  consideration  apparent  on  its  face,  all  the  judges  con- 
curred that  it  was  not ;  but  Mr.  Justice  Bayley,  in  illustra- 
tion of  his  position,  went  on  to  make  this  remark :  "  I  find, 
too,  that  the  word  '  agreement '  in  this  clause  is  coupled  with 
'  contracts  of  marriage  and  for  the  sale  of  land ; '  now,  in 
those  cases,  it  is  clear  that  the  consideration  must  be  stated. 
For  it  would  be  a  very  insufficient  agreement  to  say,  '  I  agree 
to  sell  A.  B.  my  lands, '  without  specifying  the  terms  or  the 
price. "  2 

§  381  a.  The  statement  of  the  price  in  the  memorandum 
of  a  contract  of  sale  is  not  always  to  be  regarded  in  the  same 
light  as  the  statement  of  the  consideration  of  the  contract. 
When  an  action  is  brought  upon  a  contract  within  the  statute, 
the  memorandum  must  contain  some  designation  of  the 
parties  contracting  and  the  terms  of  the  contract;  which 
last,  in  the  case  of  a  contract  of  sale,  would  include  the  price, 
if  any  had  been  stipulated.  It  need  not  contain  or  state  any 

1  Egerton  v.  Mathews,  6  East,  307. 

2  Saunders  v.  Wakefield,  4  Barn.  &  Aid.  601. 


CH.    XVIII.]          THE   CONTENTS   OF  THE   MEMORANDUM.  515 

promise  to  perform  or  allegation  of  performance,  although 
such  promise  or  performance  constitutes  the  only  considera- 
tion for  the  engagement  upon  which  the  defendant  is  sought 
to  be  charged.  In  Egerton  v.  Mathews,  for  example,  it  did 
not  appear  in  the  memorandum,  whether  or  not  the  plaintiffs 
ever  had  delivered,  or  agreed  to  deliver,  any  cotton,  yet 
delivery,  or  a  promise  to  deliver,  was  evidently  the  only  con- 
sideration for  the  defendant's  promise  to  pay.  The  decision 
of  Egerton  v.  Mathews  was  certainly  correct,  because  all  the 
terms  of  the  bargain  were  there  presented  in  the  writing; 
not  because  the  word  "bargain  "  imports  a  consideration  any 
less  than  the  word  "agreement."  On  the  other  hand,  as  Mr. 
Justice  Bayley  says,  "  it  would  be  a  very  insufficient  agree- 
ment to  say  '  I  agree  to  sell  A.  B.  my  lands,'  without  speci- 
fying the  terms  or  the  price,"  because  the  price,  which  is  an 
element  of  the  sale,  is  not  stated ;  and  not  because  a  memo- 
randum of  an  agreement  to  do  a  thing  must  necessarily 
show  the  motive  or  inducement  for  making  it. 

§  381  b.  The  question  whether  the  statement  of  price  may 
be  omitted  from  a  memorandum  of  sale  of  land,  under  the 
rule  (in  those  States  where  it  is  the  rule)  that  the  considera- 
tion of  a  contract  within  the  Statute  of  Frauds  need  not  be 
expressed,  has  been  recently  considered  by  the  Supreme 
Court  of  Massachusetts.1  The  action  was  by  the  purchaser 
and  upon  a  memorandum  which  failed  to  state  clearly  the 
amount  of  the  price  he  was  to  pay.  The  decision,  by  a 
majority  of  the  court,  was  that  the  purchaser  could  recover. 
In  terms,  it  turned  upon  the  construction  of  a  section  of  the 
Massachusetts  Statute  of  Frauds,  explicitly  enacting;  that 
the  consideration  of  the  contract  need  not  be  expressed  in 
the  memorandum.2  This  section,  it  was  agreed,  was  in- 
serted in  the  Massachusetts  statute  for  the  purpose  of  adopt- 
ing and  confirming  the  judgment  of  the  court  in  Packard  v. 

1  Hayes  r.  Jackson,  159  Mass.  451. 

2  Mass.  Public  Statutes,  chap.  78,  sec.  2;  re  enacting  Mass.  Rev.  Stat., 
chap.  74,  sec.  2. 


516  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

Richardson,1  declining  to  follow  Wain  v.  Warlters.  But  it 
was  inserted  after  an  enumeration  of  contracts  covered  by 
the  Statute  of  Frauds,  expressly  including  contracts  for  the 
sale  of  land,  and  was  in  terras  that  "  the  consideration  of  any 
such  promise,  contract,  or  agreement,  need  not  be  set  forth  or 
expressed  in  the  writing,"  etc. 

The  majority  opinion  said,  "the  language  of  the  section  is 
general,  and  should  be  read  as  no  doubt  it  was  meant. "  The 
minority  insisted  that  it  should  be  construed  so  as  to  give 
effect  to  the  intention  of  the  revisers  of  the  statutes,  whicli 
was  to  adopt  and  confirm  the  judgment  in  Packard  v.  Rich- 
ardson, declining  to  follow  Wain  v.  Warlters;  and  that  as 
those  were  cases  of  guaranties,  unilateral  contracts,  the  sec- 
tion should  not  be  made  to  apply  to  other  than  unilateral 
contracts.  Their  opinion,  by  Field,  C.  J.,  says:  "When  the 
whole  contract  or  promise  of  the  defendant  is  to  do  a  cer- 
tain thing,  and  this  is  an  absolute  promise,  resting  upon  a 
consideration  which  has  been  executed,  there  is  some  reason 
in  saying  that  the  memorandum  signed  by  the  defendant  need 
not  contain  the  consideration  or  inducement  of  the  contract 
or  promise.  But  in  a  contract  executory  on  both  sides, 
where  the  promises  are  mutual,  and  each  is  the  consideration 
of  the  other,  the  promises  are  conditional,  and  one  party 
agrees  to  perform  his  part  of  the  contract  only  on  condition 
that  the  other  will  perform  his  part,  and  it  cannot  be  known 
what  the  promise  of  the  one  is  without  knowing  the  express 
or  implied  promise  of  the  other.  ...  If  a  mere  acknowledg- 
ment in  writing  by  the  vendor  that  he  has  agreed  to  convey 
specific  land  to  the  vendee,  on  terms  which  are  not  expressed, 
is  sufficient  to  satisfy  the  Statute  of  Frauds,  then  it  is  open 
to  the  vendee  to  prove  by  oral  testimony  the  price  to  be  paid, 
and  all  the  other  terms  of  the  contract  to  be  performed  by 
him,  and  the  statute  will  no  longer  prevent  frauds  and  per- 
juries. .  .  .  The  decision  of  the  court  seems  to  me  in  great 
part  to  nullify  the  statute."  There  is  no  answer  to  this 

1  17  Mass.  122. 


CH.    XVIII.]          THE   CONTENTS   OF   THE   MEMORANDUM.  517 

reasoning,  in  the  absence  of  the  special  provision  that  the 
consideration  need  not  be  expressed  in  the  case  of  any  of  the 
contracts  named,  including  contracts  for  land.  And  the  dis- 
senting opinion  recites  numerous  cases  where,  notwithstand- 
ing the  presence  of  such  a  special  provision,  it  has  been  held 
that  all  the  material  terms  and  conditions  of  a  sale  of  land 
must  appear  in  the  memorandum. 

§  382.  In  cases  of  sales,  credit  stipulated  is  an  essential 
term  of  the  contract,  and  must  appear  in  the  memorandum. 
Such  appears  to  be  the  established  rule  in  actions  at  law,1 
though  it  seems  it  is  not  so  strictly  applied  in  suits  in  equity 
for  a  specific  execution  of  the  contract.  Where  an  adver- 
tisement of  land  for  sale  at  auction  stated  that  it  was  to  be 
on  a  credit,  and  the  auctioneer's  entry  at  the  time  of  sale 
made  no  allusion  to  the  credit,  and  the  proprietor,  at  the 
expiration  of  the  time  alleged  by  the  defendant  as  having 
been  really  allowed,  brought  a  bill  to  compel  a  specific  exe- 
cution of  the  purchase,  the  Court  of  Appeals  of  Virginia 
made  a  decree  accordingly.  Brockenborough,  J.,  remarked 
that  the  defendant,  by  the  memorandum  of  sale,  had  bound 
himself  to  pay  in  cash ;  and  although  that  memorandum  did 
not  state  the  truth  as  to  the  time  of  payment,  yet  the  bill 
did,  and  the  defendant  could  not  object;  but  that  if  the 
plaintiff  had  claimed  specific  execution  at  cash,  the  defend- 
ant might  have  resisted  on  the  ground  of  the  credit  really 
agreed  to  be  given.2  In  the  absence  of  any  evidence  that 
credit  was  to  be  allowed,  the  memorandum  may  be  silent  in 
that  respect,  and  a  sale  for  cash  will  be  presumed.3  And 
it  seems  to  be  in  no  case  material  that  it  should  appear 

1  Morton  r.  Dean,  13  Met.  (Mass.)  385;  Davis  v.  Shields,  26  Wend. 
(N.  Y.)  341  ;  M'Farson's  Appeal,  11  Pa.  St.  503;  Soles  v.  Hickman,  20 
Pa.  St.  180;  Buck  v.  Pickwell,  27  Vt.  157;  Ellis  r.  Deadman,  4  Bibb  (Ky.) 
466  ;  Parker  v.  Bodley,  4  Bibb  (Ky.)  102;  Elfe  p.  Gadsden,2  Rich  (S.  C.) 
Law  37 ;  Wright  v.  Weeks,  3  Bosw.  (N.  Y.)  372. 

a  Smith  v.  Jones,  7  Leigh  165. 

•  Valpy  v.  Gibson,  4  C.  B.  837;  Fessenden  v.  Mussey,  11  Cush.  (Mass.) 
127. 


518  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

in  the  writing  whether  the  payment  on  time  is  to  be  with 
interest.1 

§  383.  In  a  case  in  the  Supreme  Court  of  the  United 
States,  already  repeatedly  referred  to  in  this  chapter,  the 
memorandum  was:  "Credit  to  commence  when  ship  sails, 
not  after  Dec.  1st, "  and  the  court  held  the  time  of  credit  to 
be  sufficiently  expressed,  although  there  was  no  evidence 
what  ship  was  referred  to.2  See  the  dissenting  opinion  of 
Mr.  Justice  Curtis,  in  which  he  exhibits  very  clearly  the 
difficulties  attending  this  and  other  points  in  the  decision  of 
the  majority  of  the  court. 

§  384.  The  memorandum  need  not  stipulate  any  time  or 
place  for  the  delivery  of  goods  sold,  or  for  the  performance 
of  any  other  contract,  in  the  absence  of  such  stipulation  in 
the  contract.3  But  where  time  is  stipulated,  then  it  is  in 
the  nature  of  a  condition,  which  goes  to  the  essence  of  the 
contract  and  must  appear  in  the  memorandum.4  And  so 
with  a  warranty  of  quality  in  case  of  a  sale  of  goods,5  pro- 
vided, it  would  seem,  that  the  warranty  is  a  condition  of  the 
contract  of  sale,  and  not  an  independent  agreement.6  The 
general  rule  is  that  the  memorandum  must  contain  all  the 
material  terms  of  the  contract.7 

1  Atwood  v.  Cobb,  16  Pick.  (Mass.)  227;  Neufville  v.  Stuart,  1  Hill 
(S.  C.)  Eq.  159. 

2  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  446. 

8  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  446;  Kriete  ».  Myer, 
61  Md.  553. 

4  Davis  v.  Shields,  26  Wend.  (N.  Y.)  341.  On  error,  reversing  the 
decision  of  the  Supreme  Court,  24  Wend.  322.  See  also  First  Baptist 
Church  of  Ithaca  o.  Bigelow,  16  Wend.  28;  Gault  v.  Stormont,  51  Mich. 
636;  Smith  v.  Shell,  82  Mo.  215;  Newburger  v.  Adams,  92  Ky.  26. 

6  Peltier  v.  Collins,  3  Wend.  (N.  Y.)  459;  Smith  v.  Dallas,  35  Ind. 
255 ;  Newbery  v.  Wall,  65  N.  Y.  484. 

6  Langdell,  Select  Cases  on  Sales,  1033.     Compare  the  agreement  in 
Sari  v.  Bourdillon,  26  L.  J.  C.  P.  80,  as  to  the  mode  of  payment,  which, 
according   to  Jervis,    C.  J.,    "was   not    intended   to   be  a  part  of  the 
contract." 

7  M'Lean  v.  Nicoll,  7  Jur.  N.  8.  999 ;  Boardman  v.  Spooner,  13  Allen, 
353;  Gardner  v,  Hazelton,  121  Mass.  494;  Gwathney  v.  Cason,  74  N.  C. 


CH.   XVIII.]          THE   CONTENTS   OF   THE   MEMORANDUM.  519 

§  385.  It  must,  of  course,  appear  from  the  memorandum, 
what  is  the  subject-matter  of  the  defendant's  engagement. 
Property  which  is  purported  to  be  bargained  for,  must  be  so 
described  that  it  may  be  identified;1  and  in  the  case  of  an 

5;  Liun  Boyd  Co.  v.  Terrell,  13  Bush  (Ky.)  463;  Bacon  v.  Eccles,  43 
Wise.  227  ;  Williams  v.  Morris,  95  U.  S.  444 ;  Jervis  v.  Berridge,  L.  R. 
8  Ch.  App.  351  ;  May  v.  Ward,  134  Mass.  127 ;  Eckman  v.  Brash,  20 
Fla.  703  ;  Davis  v.  Pollock,  36  S.  C.  544 ;  Reid  v.  Kenworthy,  25  Kansas  * 
701;  Fry  v.  Platt,  32  Kansas  62;  Dicksou  v.  Lambert,  98  Ind.  487; 
Shipman  v.  Campbell,  79  Mich.  82;  George  ».  Couhaiin,  38  Miuti.  338; 
Drake  v.  Seaman,  97  N.  Y.  230;  Webster  ».  Clark,  60  N.  H.  36;  Eppich 
».  Clifford,  6  Col.  493;  Mims  v.  Chandler,  21  S.  C.  480;  Riuger  v.  Holtz- 
claw,  112  Mo.  519;  Baumau  v.  Marristee  Co.,  94  Mich.  363;  Lester  v. 
Heidt,  86  Ga.  226;  Rineer  v.  Collins,  156  Pa.  St.  343;  Nelson  r.  Shelby 
Mfg.  &  Imp.  Co.,  96  Ala.  515.  Whether,  as  was  held  in  Cherry  v.  Long, 
Phil.  (N.  C.)  Law  466,  an  auctioneer's  memorandum  which  omits  the 
terms  of  sale,  can  be  helped  by  the  advertisement,  without  producing  it, 
but  taking  it  for  granted  that  it  "  contained  the  terms  of  sale,  as  is  usual 
in  such  cases,"  quvere.  See  Riley  v.  Farns worth,  116  Mass.  223. 

1  Clinan  v.  Cooke,  1  Schoales  &  L.  22;  Lindsay  v.  Lynch,  2  Schoales 
&  L.  1 ;  Haruett  v.  Yeilding,  2  Schoales  &  L.  549  (in  regard  to  the  case  of 
Allan  i;.  Bower,  3  Bro.  C.  C.  149,  see  the  remarks  of  Lord  Redesdale,  in 
Clinan  v.  Cooke,  supra)]  Barry  v.  Coombe,  1  Pet.  (U.  S.)  640;  Church  of 
the  Advent  v.  Farrow,  7  Rich.  (S.  C.)  Eq.  378;  Carmack  v.  Masterson,  3 
Stew.  &  P.  (Ala.)  411;  Pipkin  v.  James,  1  Humph.  (Tenn.)  325;  Kay  r. 
Curd,  6  B.  Mon.  (Ky.)  100  ;  Baldwin  v.  Kerlin,  46  Ind.  426;  Scaulan  r. 
Geddes,  112  Mass.  15;  Meadows  v.  Meadows,  3  McCord  (S.  C.)  Law 
458;  Ferguson  v.  Staver,  33  Pa.  St.  411  ;  Ives  v.  Armstrong,  5  R.  I.  567; 
Force  v.  Dutcher,  18  N.  J.  Eq.  401;  Montacute  ».  Maxwell,  1  P.  Wms. 
618  ;  Fisher  v.  Kuhn,  54  Miss.  480;  White  v.  Motley,  4  Baxt.  (Tenn.) 
544;  Williams  v.  Morris,  95  U.  S.  444;  Ryan  v.  Davis,  5  Montana  505; 
Fortescue  v.  Crawford,  105  N.  C.  29  :  Humbert  <>.  Brisbane,  25  S.  C.  506; 
Sherer  v.  Trowbridge,  135  Mass.  500;  Voorheis  v.  Biting,  22  S.  W.  Rep. 
(Ky.)  80;  Lowe  v.  Harris,  17  S.  E.  Rep.  (N.  C.)  539;  Andrew  r.  Bab- 
cock.  26  Atl.  Rep.  (Conn.)  715;  Fox  v.  Courtney,  111  Mo.  147;  Weil  ». 
Willard,  55  Mo.  App.  376  ;  Crockett  v.  Green,  3  Del.  Ch.  466;  Tewks- 
bury  v.  Howard,  37  N.  E.  Rpp.  (Ind.)  355;  Watt  r.  Wisconsin  Co.,  63 
Iowa,  730  ;  Slater  v.  Smith.  117  Mass.  96;  Scarritt  r.  St.  Johns  M.  E. 
Church,  7  Mo.  App.  174;  Schroeder  v.  Taaffe,  11  Mo.  App.  267;  Whaley 
v.  Hinchman,  22  Mo.  App.  483  ;  Pulse  «>.  Miller,  81  Ind.  190;  Beekman 
v.  Fletcher,  48  Mich.  555;  Tice  v.  Freeman,  30  Minn.  380;  Pierson  v. 
Ballard,  32  Minn.  263;  Quinn  v.  Champagne,  38  Minn.  322;  Mellon  r. 
Davison.  123  Pa.  St.  298;  Patrick  v.  Sears,  19  Fla.  856;  Winn  v.  Henry, 
84  Ky.  48.  . 


520  STATUTE   OF   FRAUDS.  [CH.   XVIIL 

agreement  for  a  lease,  the  term  for  which  the  lease  is  to  be 
given  must  appear  in  the  writing,  and  cannot  be  supplied  by 
parol  evidence.1  But  the  subject-matter  may  in  any  case  be 
identified  by  reference  to  an  external  standard,  and  need  not 
be  in  terms  explained.2  Thus  to  describe  it  as  the  vendor's 
right  in  a  particular  estate,3  or  as  the  property  which  the 
vendor  had  at  a  previous  time  purchased  from  another  party,* 
is  sufficient.  And  it  is  very  common  to  identify  the  debt  of 
a  third  person,  for  which  the  defendant  has  made  himself 
responsible,  as  the  debt  then  owing,  or  to  become  owing,  by 
such  third  person  to  the  plaintiff,  without  further  descrip- 
tion.5 Where  the  memorandum  described  the  land  as  the 
estate  owned  by  the  seller  on  a  certain  street,  and  it  appeared 
that  he  owned  two  estates  on  that  street,  to  either  of  which 
the  description  might  apply,  the  memorandum  was  held 
insufficient.6 

1  Clinaii  v.  Cooke,  1  Schoales  &  L.  22;  Abeel  v.   Radcliff,  13  Johns. 
(N.  Y.)  297;  Hodges  v.   Howard,   5  R.   I.   149;  Fitzmaurice  v.   Bayley, 
9  H.  L.  C.  79;  Hurley  v.  Browu,   98  Mass.  545;  Parker  v.  Tainter,  123 
Mass.  185;  Riley  v.  Williams,  123  Mass.  506;  Clarke  v.  Fuller,  16  C.  B. 
N.  s.  24;  Farwell  v.  Mather,  10  Allen  (Mass.)  322;  Marshall  v.  Berridge 
L.  R.  19  Ch.  D.  233. 

2  Springer  v.  Kleinsorge,  83  Mo.  152.     See  §  346  b.,  ante. 

8  Nichols  v.  Johnson,  10  Conn.  192 ;  Phillips  v.  Hooker,  Phil.  (N.  C.) 
Eq.  193;  Lente  v.  Clarke,  22  Fla.  515;  Mfg.  Co.  v.  Hendricks,  106  N.  C. 
485.  See  MacLin  v.  Haywood,  90  Tenn.  195;  Ballon  v.  Sherwood,  32 
Neb.  666. 

4  Atwood  v.  Cobb,  16  Pick.  (Mass.)  227.  And  see  Tallman  v.  Frank- 
lin, 14  X.  Y.  584;  Simmons  v.  Spruill,  3  Jones  (N.  C.)  Eq.  9;  Hurley  v. 
Brown,  98  Mass.  545;  Whelan  v.  Sullivan,  102  Mass.  204;  Grace  v.  Deni- 
son.  114  Mass.  16  ;  Mead  v.  Parker,  115  Mass.  413;  Horsey  v.  Graham, 
L.  R.  5  C.  P.  9  ;  Owen  v.  Thomas,  3  Mylne  &  K.  353  ;  Baumann  r. 
James,  L.  R.  3  Ch.  App.  508;  McMurray  v.  Spicer.  L.  R.  5  Eq.  527. 
But  see  Holmes  v.  Evans,  48  Miss.  247;  Johnson  v.  Kellogg,  7  Heisk. 
(Tenn.)  262;  White  v.  Core,  20  W.  Va.  272;  Springer  v.  Kleinsorge,  83 
Mo.  152;  Henderson  v.  Perkins,  21  S.  W.  Rep.  (Ky.)  1035.  See  Parks  v. 
People's  Bank,  31  Mo.  App.  12.  And  see  Phillips  v.  Swank,  120  Pa  St. 
76;  Shardlow  v.  Cotterell,  L.  R.  20  Ch.  D.  90.  But  see  Nippolt  v.  Kam- 
mon.  39  Minn.  372  ;  Horton  v.  Wollner,  71  Ala.  452. 

6  Bateman  v.  Phillips,  15  East  272.  See  also  Sale  v.  Darragh,  2 
Hilton  (X.  Y.)  184;  Hall  ».  Soule,  11  Mich.  494. 

6  Doherty  v.  Hill,  144  Mass.  465. 


CH.   XV III.]          THE   CONTENTS   OF  THE   MEMORANDUM.  521 

§  386.  But  the  question  which  is  by  far  the  most  difficult 
presented  in  the  present  branch  of  our  subject,  and  which 
has  perhaps  more  engaged  the  attention  of  courts,  and  pro- 
voked a  more  marked  conflict  of  judicial  opinion  than  any 
other  arising  upon  any  part  of  the  Statute  of  Frauds,  is, 
whether  the  note  or  memorandum  in  writing  must  show 
the  consideration  upon  which  the  defendant's  promise  is 
founded. 

§  387.  This  question  first  arose  in  the  case  of  Wain  v. 
Warlters,  decided  in  the  Queen's  Bench  in  1804.  The 
declaration  alleged  in  substance  that  the  plaintiffs,  being  the 
indorsees  and  holders  of  a  bill  of  exchange  for  £56,  drawn 
upon  and  accepted  by  one  Hall,  which  was  then  due  and 
unpaid,  and  being  about  to  sue  the  drawee  and  acceptor 
thereon,  the  defendant,  upon  a  certain  day,  in  consideration 
of  the  premises  and  that  the  plaintiffs  would  forbear  to  pro- 
ceed with  their  suit,  undertook  and  promised  to  pay  the 
plaintiffs,  by  half-past  four  o'clock  on  that  day,  £56  and 
the  expenses  which  had  been  incurred  by  them  on  said  bill. 
At  the  trial  before  Lord  Ellenborough,  the  plaintiffs  pro- 
duced in  evidence  a  writing,  signed  by  the  defendant,  in 
these  words:  "Messrs.  Wain  &  Co.,  I  will  engage  to  pay 
you  by  £  past  4  this  day  fifty-six  pounds  and  expenses  on  bill 
that  amount  on  Hall.  (Signed)  Jno.  Warlters,  and  dated, 
No.  2,  Cornhill,  April  30th,  1803."  The  defendant  having 
objected  that,  although  his  promise  was  in  writing,  the  con- 
sideration of  it  was  not  in  writing,  and  that  the  Statute  of 
Frauds  required  both  to  appear  in  the  memorandum,  Lord 
Ellenborough  nonsuited  the  plaintiffs ;  a  rule  nisi  was  ob- 
tained for  setting  this  nonsuit  aside  and  for  a  new  trial. 
Upon  argument,  all  the  judges  concurred  in  discharging  the 
rule.  Lord  Ellenborough  first  referred  with  approbation  to 
the  remark  of  Comyns,  L.  C.  B.,  that  "an  agreement  is 
aggregatio  mentium,  viz.,  where  two  or  more  minds  are  united 
in  a  thing  done  or  to  be  done ;  a  mutual  assent  to  do  a  thing; 
and  it  ought  to  be  so  certain  and  complete  that  each  party 


522  STATUTE   OF  FKAUDS.  [CH.  XVIII. 

may  have  an  action  upon  it;"1  and  then  proceeded  to  say: 
"The  question  is,  whether  that  word  is  to  be  understood  in 
the  loose  incorrect  sense  in  which  it  may  sometimes  be  used, 
as  synonymous  to  promise  or  undertaking,  or  in  its  more 
proper  and  correct  sense,  as  signifying  a  mutual  contract  on 
consideration  between  two  or  more  parties  ?  The  latter 
appears  to  me  to  be  the  legal  construction  of  the  word,  to 
which  we  are  bound  to  give  its  proper  effect ;  the  more  so 
when  it  is  considered  by  whom  that  statute  is  said  to  have 
been  drawn,  by  Lord  Hale,  one  of  the  greatest  judges  who 
ever  sat  in  Westminster  Hall,  who  was  as  competent  to 
express  as  he  was  able  to  conceive  the  provisions  best  calcu- 
lated for  carrying  into  effect  the  purposes  of  that  law.  The 
person  to  be  charged  for  the  debt  of  another  is  to  be  charged, 
in  the  form  of  the  proceeding  against  him,  upon  his  special 
promise  ;  but  without  a  legal  consideration  to  sustain  it,  that 
promise  would  be  nudum  pactum  as  to  him.  The  statute 
never  meant  to  enforce  any  promise  which  was  before  invalid 
merely  because  it  was  put  in  writing.  The  obligatory  part 
is  indeed  the  promise,  which  will  account  for  the  word 
promise  being  used  in  the  first  part  of  the  clause,  but  still  in 
order  to  charge  the  party  making  it,  the  statute  proceeds  to 
require  that  the  agreement,  by  which  must  be  understood  the 
agreement  in  respect  of  which  the  promise  was  made,  must  be 
reduced  into  writing.  And  indeed  it  seems  necessary  for 
effectuating  the  object  of  the  statute  that  the  consideration 
should  be  set  down  in  writing  as  well  as  the  promise ;  for 
otherwise  the  consideration  might  be  illegal,  or  the  promise 
might  have  been  made  upon  a  condition  precedent,  which  the 
party  charged  may  not  afterwards  be  able  to  prove,  the  omis- 
sion of  which  would  materially  vary  the  promise,  by  turning 
that  into  an  absolute  promise  which  was  only  a  conditional 
one :  and  then  it  would  rest  altogether  on  the  conscience  of 
the  witness  to  assign  another  consideration  in  the  one  case, 
or  to  drop  the  condition  in  the  other,  and  thus  to  introduce 

1  Com.  Dig.  tit.  Agreement,  A.  1. 


CH.   XVm.]  THE   CONTENTS   OF   THE   MEMORANDUM.  523 

the  very  frauds  and  perjuries  which  it  was  the  object  of  the 
act  to  exclude,  by  requiring  that  the  agreement  should  be 
reduced  into  writing,  by  which  the  consideration  as  well  as 
the  promise  would  be  rendered  certain.  .  .  .  The  word  agree- 
ment is  not  satisfied  unless  there  be  a  consideration,  which 
consideration  forming  part  of  the  agreement  ought  therefore 
to  have  been  shown ;  and  the  promise  is  not  binding  by  the 
statute  unless  the  consideration  which  forms  part  of  the 
agreement  be  also  stated  in  writing.  Without  this,  we  shall 
leave  the  witness  whose  memory  or  conscience  is  to  be 
refreshed  to  supply  a  consideration  more  easy  of  proof,  or 
more  capable  of  sustaining  the  promise  declared  on.  Find- 
ing therefore  the  word  agreement  in  the  statute,  which  appears 
to  be  most  apt  and  proper  to  express  that  which  the  policy  of 
the  law  seems  to  require,  and  finding  no  case  in  which  the 
proper  meaning  of  it  has  been  relaxed,  the  best  construction 
which  we  can  make  of  the  clause  is  to  give  its  proper  and 
legal  meaning  to  every  word  of  it. "  Grose,  J.  :  "  What  is 
required  to  be  in  writing  ...  is  the  agreement  (not  the 
promise,  as  mentioned  in  the  first  part  of  the  clause),  or 
some  note  or  memorandum  of  the  agreement.  Now  the  agree- 
ment is  that  which  is  to  show  what  each  party  is  to  do  or 
perform,  and  by  which  both  parties  are  to  be  bound ;  and  this 
is  required  to  be  in  writing.  If  it  were  only  necessary  to 
show  what  one  of  them  was  to  do,  it  would  be  sufficient  to 
state  the  promise  made  by  the  defendant  who  was  to  be 
charged  upon  it.  But  if  we  were  to  adopt  this  construction 
it  would  be  the  means  of  letting  in  those  very  frauds  and  per- 
juries which  it  was  the  object  of  the  statute  to  prevent.  For 
without  the  parol  evidence  the  defendant  cannot  be  charged 
upon  the  written  contract  for  want  of  a  consideration  in  law 
to  support  it.  The  effect  of  the  parol  evidence  then  is  to 
make  him  liable:  and  thus  he  would  be  charged  with  the 
debt  of  another  by  parol  testimony,  when  the  statute  was 
passed  with  the  very  intent  of  avoiding  such  a  charge,  by 
requiring  that  the  agreement,  by  which  must  be  understood 


524  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

the  whole  agreement  should  be  in  writing."  Lawrence,  J.  : 
"From  the  loose  manner  in  which  the  clause  is  worded,  I  at 
first  entertained  some  doubt  upon  the  question;  but  upon 
further  consideration  I  agree  with  my  Lord  and  my  Brothers 
upon  their  construction  of  it.  If  the  question  had  arisen 
merely  upon  the  first  part  of  the  clause,  I  conceive  that  it 
would  only  have  been  necessary  that  the  promise  should  have 
been  stated  in  writing;  but  it  goes  on  to  direct  that  no 
person  shall  be  charged  on  such  promise,  unless  the  agree- 
ment, or  some  note  or  memorandum  thereof,  that  is,  of  the 
agreement,  be  in  writing;  which  shows  that  the  word  agree- 
ment was  meant  to  be  used  in  a  sense  different  from  promise, 
and  that  something  besides  the  mere  promise  was  required  to 
be  stated.  And  as  the  consideration  for  the  promise  is  part 
of  the  agreement,  that  ought  also  to  be  stated  in  writing." 
Le  Blanc,  J.  :  "  If  there  be  a  distinction  between  agreement 
and  promise,  I  think  that  we  must  take  it  that  agreement 
includes  the  consideration  for  the  promise  as  well  as  the 
promise  itself :  and  1  think  it  is  the  safer  method  to  adopt 
the  strict  construction  of  the  words  in  this  case,  because  it  is 
better  calculated  to  effectuate  the  intention  of  the  act,  which 
was  to  prevent  frauds  and  perjuries,  by  requiring  written 
evidence  of  what  the  parties  meant  to  be  bound  by.  I  should 
have  been  as  well  satisfied,  however,  if,  recurring  to  the 
words  used  in  the  first  part  of  the  clause,  they  had  used  the 
same  words  again  in  the  latter  part,  and  said,  '  unless  the 
promise  or  agreement  upon  which  the  action  is  brought,  or 
some  note  or  memorandum  thereof,  shall  be  in  writing.' 
But  not  having  so  done,  I  think  we  must  adhere  to  the  strict 
interpretation  of  the  word  agreement,  which  means  the  con- 
sideration for  which  as  well  as  the  promise  by  which  the 
party  binds  himself. "  x 

§  388.   Within  a  few  years  after  the  determination  of  this 
case,  it  was  several  times  disapproved  by  Lord  Eldon,  par- 

i  Wain  v.  Warlters,  5  East  10. 


CH.   XVIII.]          THE   CONTENTS   OF   THE   MEMORANDUM.  525 

ticularly  in  Gardom,  ex  parte,  where  he  said  that  until  it 
was  decided,  he  "had  always  taken  the  law  to  be  clear  that 
if  a  man  agreed  in  writing  to  pay  the  debt  of  another,  it  was 
not  necessary  that  the  consideration  should  appear  upon  the 
face  of  the  writing. " l  But  it  was  never  overruled,  and  after- 
ward, the  same  point  being  directly  presented  to  the  judges 
of  the  Queen's  Bench,  it  was  unanimously  affirmed.2  From 
that  time  the  doctrine  of  Wain  v.  Warlters  appears  to  have 
been  accepted  as,  beyond  question,  the  English  law  upon  this 
point.3 

§  389.  The  case  of  Egerton  v.  Mathews,  decided  in  the 
year  following  Wain  v.  Warlters,  and  by  the  same  bench, 
requires  especial  notice ;  because  upon  it  much  of  the  opposi- 
tion in  this  country  to  the  doctrine  of  Wain  v.  Warlters  is 
found  to  rest.  The  facts  in  that  case  have  been  recited  on  a 
previous  page,4  where  we  saw  that  it  arose  upon  a  bargain 
for  the  purchase  of  goods  under  the  seventeenth  section ;  and 
that  the  memorandum  produced  described  the  goods  pur- 
chased and  stated  the  price  to  be  paid.  An  objection  on  the 
ground  of  Wain  v.  Warlters  was  made  to  the  court  and  over- 


1  Gardom,  ex  parte,  15  Ves.  288;  Minet,  ex  parte,  14  Ves.  190.  See 
also  Boehm  v.  Campbell,  8  Taunt.  679. 

3  Saunders  v.  Wakefield,  4  Barn.  &  Aid.  595. 

8  Lyon  i'.  Lamb,  in  the  Exchequer  of  Pleas,  1807,  reported  in  Fell  on 
Merc.  Guar.  Appendix,  No.  III.  ;  Jenkins  v.  Reynolds,  3  Brod.  &  B.  145 
Morley  v.  Boothby,  3  Bing.  107;  Hawes  v.  Armstrong,  1  Bing.  N.  R. 
767;  Cole  v.  Dyer,  1  Cromp.  &  J.  461 ;  James  r.  Williams,  5  Barn.  &  Ad. 
1109;  Clancy  v.  Piggott,  2  Ad.  &  E.  473;  Raikes  v.  Todd,  8  Ad.  &  E. 
846;  Sweet  v.  Lee,  3  Man.  &  G.  452;  Bainbridge  v.  Wade.  16  Q.  B.  89. 
By  19  &  20  Viet.  c.  97,  the  Mercantile  Law  Amendment  Act,  it  is  pro- 
vided that  "No  special  promise  ...  to  answer  for  the  debt,  default, 
or  miscarriage  of  another  person,  being  in  writing,  and  signed  by  the 
party  to  be  charged  therewith,  or  some  other  person  by  him  thereunto 
lawfully  authorized,  shall  be  deemed  invalid  to  support  an  action, 
suit,  or  other  proceeding  to  charge  the  person  by  whom  such  promise 
shall  have  been  made,  by  reason  only  that  the  consideration  for  such  prom- 
ise does  not  appear  in  writing,  or  by  necessary  inference  from  a  written 
document. " 

«  Ante,  §  381. 


526  STATUTE   OF  FRAUDS.  [CH.    XVIIL 

ruled;  the  judges  recognizing  that  case,  but  discriminating 
between  the  requisitions  of  the  fourth  section  and  those  of 
the  seventeenth,  in  respect  to  the  statement  of  the  considera- 
tion. Lord  Ellenborough  observed  that  the  words  of  the 
statute  were  satisfied,  if  there  was  some  note  or  memoran- 
dum of  the  bargain  signed  by  the  parties  to  be  charged  by 
such  contract ;  and  that  this  was  a  memorandum  of  the  bar- 
gain, or  at  least  of  so  much  of  it  as  was  sufficient  to  bind  the 
parties  to  be  charged  therewith,  and  whose  signature  to  it 
was  all  that  the  statute  required.  Mr.  Justice  Lawrence 
said:  "The  case  of  Wain  v.  Warlters  proceeded  on  this, 
that  in  order  to  charge  one  man  with  the  debt  of  another, 
the  agreement  must  be  in  writing ;  which  word  agreement  we 
considered  as  properly  including  the  consideration  moving  to, 
as  well  as  the  promise  by,  the  party  to  be  so  charged ;  and 
that  the  statute  meant  to  require  that  the  whole  agreement, 
including  both  should  be  in  writing. " l  But,  notwithstand- 
ing these  remarks,  it  is  obvious  that  the  case  did  not  turn 
upon  the  absence  of  the  word  "  agreement, "  from  the  seven- 
teenth section.  In  point  of  fact,  the  consideration  for  the 
defendant's  engagement  to  pay,  namely,  the  delivery  to  be 
made  to  him  of  certain  goods,  did  appear  upon  the  face  of 
the  memorandum;2  although  the  plaintiff  had  not  himself 
signed  the  memorandum  so  as  to  be  bound.  The  case  does 
not  stand  at  all  opposed  to  Wain  v.  Warlters,  the  doctrine 
of  which  cannot  indeed  come  in  question  under  those  clauses 
of  the  statute  which  relate  to  contracts  of  bargain  and  sale, 
where,  of  course,  the  memorandum  must  always  show  the 
price  stipulated,  as  necessary  to  an  understanding  of  the 
obligation  of  the  party  to  be  charged,  whether  the  buyer  or 
seller,3  and,  by  showing  the  price  stipulated,  shows  by  fair 
implication  the  agreement  of  the  other  party  to  buy  or  sell 


i  Egerton  ».  Mathews,  6  East  308. 

3  Jenkins  ».  Reynolds,  3  Brod.  &  B.  14,  per  Park,  J. 

»  Ante,  §§  376  et  seq. 


CH.    XVIII.]  THE   CONTENTS   OF  THE   MEMORANDUM.  527 

at  that  price,  which  agreement  is  the  consideration  of  that  of 
the  defendant  in  the  case  supposed. 

§  390.  In  this  country,  such  has  been  the  contrariety  of 
opinion  upon  the  doctrine  of  Wain  v.  Warlters,  that  it  would 
scarcely  serve  any  useful  purpose  to  attempt  to  weigh  the 
cases  with  a  view  to  ascertain  which  way  the  balance  of  judi- 
cial opinion  may  incline.  In  each  of  the  States  the  point 
has  been  presented,  and  in  each  has  been  decided  as  seemed 
to  its  courts  wisest  in  point  of  policy,  or  most  commended 
by  authority.  By  statute  in  several  States  the  consideration 
must  be  expressed  in  writing.1 

§  391.  Of  those  States  where  the  word  "  agreement "  is 
retained  in  the  clause  requiring  the  memorandum,  the  doc- 
trine of  Wain  v.  Warlters  is  repudiated  in  Maine,2  Vermont,8 
Connecticut,4  Massachusetts,5  North  Carolina,6  Ohio,7  and 
Missouri.8  But  it  has  received  the  sanction  of  the  courts  in 
New  Hampshire,9  New  York,10  New  Jersey,11  Delaware,12 

1  Eppich  v.  Clifford,  6  Col.  493. 

2  Levy  v.  Merrill,  4  Greenl.  180;    Gillighan  v.  Boardman,  29  Me.  79; 
Williams  v.  Robinson,  73  Me.  186. 

«  Smith  v  Ide,  3  Vt.  290 ;  Patchin  v.  Swift,  21  Vt.  292. 

4  Sage  v.  Wilcox,  6  Conn.  81. 

•  Packard  v.  Richardson,  17  Mass.  121.  The  Revised  Statutes  of 
Massachusetts  have  since  expressly  provided  that  the  consideration  need 
not  appear  in  the  memorandum.  See  Appendix. 

8  Miller  v.  Irvine,  1  Dev.  &  B.  Law  103 ;  Ashford  v.  Robinson,  8  Ired. 
Law  114. 

T  Reed  v.  Evans,  17  Ohio,  128. 

«  Bean  v.  Valle,  2  Mo.  126;  Halsa  v.  Halsa,  8  Mo.  303. 

9  Neelson  v.  San  borne,  2  X.  H.  413;  Underwood  r.  Campbell.  14  N.  H. 
393.     Underwood  v.  Campbell  was  doubted  in  Britton  v.  Angier,  48  N.  H. 
420,  and  overruled  in  Goodnow  v.  Bond,  59  N.  H.  150. 

10  Sears  v.  Brink,  3  Johns  210;  Kerr  v.  Shaw,  13  Johns.  236.     But  see 
Leonard  v.  Vredenburgh,  8  Johns.  29.     The   Revised    Statutes  of   New 
York  afterward  expressly  enacted  that  the  consideration  must  appear. 
See  Appendix.     Sackett  i>.  Palmer,  25  Barb.  179;  Castle  v.  Beardsley,  10 
Hun  (N.  Y.)  343. 

11  Buckley  ».    Beardslee,    2    South.    570;    Laing    v.    Lee,    Spencer, 
337. 

13  Weldin  v.  Porter,  4  Houst.  236. 


528  STATUTE   OF   FRAUDS.  [CH.    XVIII. 

Maryland,1  South  Carolina,2  Georgia,3  Indiana,4  Illinois,6 
Michigan,6  Wisconsin,7  and  Minnesota.8  In  the  statutes  of 
some  other  States  the  word  "  agreement "  does  not  so  occur, 
but  the  word  "  promise  "  is  coupled  with  it  in  the  clause  in 
question ;  and  the  courts  of  those  States  have  generally  dis- 
pensed with  the  statement  of  the  consideration,  on  the  ground 
of  that  difference.9 

§  392.  It  is  important  to  observe  that  the  American  deci- 
sions which  stand  opposed  to  Wain  v.  Warlters  have  almost 
exclusively  considered  that  case  as  depending  upon  the  force 
attributed  by  the  judges  to  the  word  "  agreement, "  and  the 
case  of  Egerton  v.  Mathews  as  depending  entirely  upon  the 
distinction  suggested  between  that  word  and  "bargain."  If 
there  had  been  no  other  ground  upon  which  those  cases  could 

1  Sloan  v.  Wilson,  4  Harr.  &  J.  322;  Elliott  v.  Giese,  7  Harr.  &  J. 
457;  Wyman  v.  Gray,  7  Harr.  &  J.  409;  Edelen  v.  Gough,  5  Gill,  103; 
Huttou  v.  Padgett,  26  Md.  228;  Deutsch  v.  Bond,  46  Md.  479.     But  see 
Brooks  v.  Dent,  1  Md.  Ch.  Dec.  523 ;  Ordeman  v.  Lawson,  49  Md.  135. 

2  Stephens  v.  Winn,  2  Nott  &  McC.  Law  372,  note  a;  though  it  was 
afterward  treated  as  an  open  question  in  Lecat  v.  Tavel,  3  McCord  Law, 
158. 

8  Henderson  v.  Johnson,  6  Ga.  390;  Hargroves  ».  Cooke,  15  Ga.  321. 

4  Gregory  v.  Logan,  7  Blackf.  112.  This  was  before  the  present  Re- 
vised Statutes,  which  provide  that  the  consideration  may  be  proved  by 
parol.  See  Appendix. 

6  Patmor  v.  Haggard,  78  111.  607.  But  since  regulated  by  legislative 
enactment.  See  Appendix. 

6  Jones  v.  Palmer,  1  Doug.  379. 

7  Reynolds  v.  Carpenter,  3  Chandl.  31;  Taylor  v.  Pratt,  3  Wise.  674; 
Parry  v.  Spikes,  49  Wise.  384. 

8  Nichols  r.  Allen,  23  Minn.  542. 

9  Thus,  in  Virginia,  Violett  v.  Patton,  5  Cranch  (U.  S.)   142;  Missis- 
sippi, Wren  v.  Pearce,  4  Smedes  &  M.  91;  Tennessee,   Taylor  v.  Ross,  3 
Yerg.  330;    Campbell  v.  Findley,  3  Humph.  330;  Oilman    v.   Kibler,  5 
Humph.   19;  Alabama,  Thompson  v.  Hall,  16  Ala.  204;  Rigby  v.  Nor- 
wood, 34  Ala.  129.     But  see   Foster  r.  Napier,  74  Ala.  393;  Kentucky, 
Ratliff  v.  Trout,  6  J.  J.  Marsh.  605;  Florida,  Dorman  v.  Bigelow,  1  Fla. 
281;'  California,  Baker  v.  Cornwall,  4  Cal.  15;  Evoy  v.  Tewksbury,  5  Cal. 
285;  Ellison  v.  Jackson  Water  Co.,  12  Cal.  542.     In  Louisiana,  the  civil 
law  prevails,  and  by  that  law  no  consideration  is  necessary  to  be  stated  or 
proved.     Ringgold  v.  Newkirk,  3  Pike  (Ark.)  97.     See  post,  §  393,  as  to 
the  materiality  of  such  change  in  the  phraseology. 


CH.    XVIII.]          THE   CONTEXTS   OF  THE   MEMORANDUM.  529 

be  sustained,  and  no  other  argument  for  the  necessity  of  hav- 
ing the  consideration  stated  in  the  memorandum,  it  may  be 
doubted  whether,  even  in  England,  the  doctrine  in  question 
would  have  survived  and  been  finally  established  as  law. 
The  definition  of  "agreement,"  as  adopted  by  Lord  Ellen- 
borough  from  Comyns,  is  itself  open  to  some  question ; 1  but 
if  it  were  correct,  the  question  remains,  whether  that  word, 
so  introduced  into  the  statute,  is  to  be  taken  in  its  strict 
legal  sense.  His  Lordship  determines  this  in  the  affirma- 
tive, upon  the  ground  of  the  well-known  sagacity  and  pre- 
cision of  Lord  Hale,  whom  he  asserts  to  have  been  the  author 
of  the  Statute  of  Frauds.  But  apart  from  the  historical 
doubts  which  exist  upon  this  point,2  we  find  it  difficult  to 
maintain  such  an  interpretation,  when  we  come  to  compare 
the  several  clauses  of  the  fourth  section  with  each  other  and 
with  the  seventeenth. 

§  393.  It  is  suggested  by  the  judges  in  Wain  v.  Warlters, 
that  the  fourth  section  discriminates  between  the  "  promise  " 
and  the  "agreement;  "  the  former  being  that  upon  which  the 
defendant  is  to  be  charged,  but  the  latter  being  that  of  which 
the  memorandum  is  required.  On  looking  at  the  last  clause 
of  the  section,  however,  we  find  that  the  party  signing  the 
"agreement  "  is  spoken  of  as  "charged  "  thereupon.  Mbre- 
over,  the  section  begins  with  saying  that  "no  action  shall  be 
brought,  whereby  to  charge,  etc.,  upon  any  special  promise," 
etc.,  and  in  the  last  clause  provides  that  "the  agreement 
upon  which  such  action  is  brought,"  etc.,  shall  be  in  writing. 
The  proper  method  of  interpreting  the  word  "  agreement "  in 
this  section,  if  it  must  be  conceded  to  have  been  used  at  all 
distinctively,  seems  to  be  that  suggested  by  Chief  Justice 
Abbott,  who  said  it  should  be  read  as  a  word  of  reference, 
as  if  all  the  precedent  words  were  incorporated  in  it,  arid  then 

1  See  Mr.  Fell's  Treatise  on  Mercantile  Guaranties,  Appendix,  No. 
IV. ,  where  this  definition  is  examined  with  much  research  and  critical 
skill. 

*  Vide  Introduction  to  this  Treatise. 

34 


530  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

the  section  would  stand  thus :  "  Unless  the  agreement,  special 
promise,  contract,  or  sale,  upon  which  such  action  is  brought, 
shall  be  in  writing,"  etc.1  But  again,  in  the  seventeenth 
section,  which  we  may  certainly  compare  with  the  fourth,  as 
in  pari  materid,  to  ascertain  the  force  intended  to  be  given 
to  such  words  as  they  have  in  common,  the  word  "bargain  " 
appears  to  be  used  in  the  same  sense  as  "  contract, "  thus : 
"No  contract  for  the  sale  of  goods,  etc.,  shall  be  allowed  to 
be  good,  unless  some  note  or  memorandum  of  the  said  bar- 
gain," etc.  Upon  the  whole,  therefore,  it  is  not  easy  to  see 
that  these  several  terms  are  employed  in  any  such  discrimi- 
nating manner  as  can  itself  afford  a  precise,  consistent,  and 
satisfactory  rule  of  construction.2 

§  394.  But  it  is  conceived  that  the  doctrine  of  Wain  v. 
Warlters  is  to  be  supported  upon  other  and  more  substantial 
grounds.  The  case  of  Saunders  v.  Wakefield,  which  followed 
after  those  cases  in  which  Lord  Eldon  had  expressed  his 
dissatisfaction  with  Wain  v.  Warlters,  reasserted  the  rule 
that  the  memorandum  must  show  the  consideration ;  and  this, 
as  is  most  important  to  observe,  upon  principle  and  reason, 
and  with  little  more  than  a  passing  allusion  to  the  leading 
case.  The  words  of  Mr.  Justice  Holroyd  present  with  most 
admirable  clearness  and  force  what  is  conceived  to  be  the 
true  reason  of  the  rule.  He  says:  "The  general  object  of 
the  statute  was,  to  take  away  the  temptation  to  commit  fraud 
by  perjury  in  important  matters,  by  making  it  requisite  in 
such  cases  for  the  parties  to  commit  the  circumstances  to 
writing.  The  particular  object  of  the  fourth  clause  was,  to 
prevent  any  action  being  brought  in  certain  cases,  unless 
there  was  a  memorandum  in  writing.  The  object  of  both 
was,  that  the  ground  and  foundation  of  the  action  should 
be  in  writing,  and  should  not  depend  on  parol  testimony. 

1  Saunders  v.  Wakefield,  4  Barn.  &  Aid.  595. 

2  In  Thompson  v.  Blanchard,  3  N.  Y.  335,  it  was  held  that  an  under- 
taking required  by  statute  to  be  entered  into  by  sureties,  in  order  to  give 
a  right  of  appeal,  is  valid  if  it  contain  the  necessary  stipulations,  although 
it  does  not  express  a  consideration,  and  is  not  under  seal. 


CH.    XVIII.]  THE   CONTENTS   OF  THE  MEMORANDUM.  531 

Unless,  therefore,  what  is  sufficient  to  maintain  the  action  be 
in  writing,  no  action  can  be  supported."  And  upon  the  case 
before  him,  which  was  assumpsit  on  a  promise  to  see  a  third 
party's  bill  of  exchange  paid,  he  says:  "In  the  present  case, 
that  which  is  reduced  into  writing  is  merely  an  engagement 
to  pay  the  bill.  Now,  unless  there  be  a  consideration  for 
that,  no  action  lies  upon  such  a  promise.  If  a  consideration 
is  to  be  introduced,  it  may  be  either  past  or  future,  and  must 
be  proved  by  parol  evidence.  If  that  were  allowed,  all  the 
danger  which  the  Statute  of  Frauds  was  intended  to  prevent, 
would  be  again  introduced."1 

§  395.  It  was  said  by  Chief  Justice  Best,  that  if  the  clause 
in  the  statute  had  not  expressed  (as  he  thought  it  did)  that 
the  whole  agreement  should  be  in  writing,  the  law  of  evi- 
dence would  have  rendered  it  necessary,  by  declaring  that 
nothing  could  be  added  by  parol  testimony  to  the  terms 
expressed  in  writing;  and  that,  if  he  had  never  heard  of 
Wain  v.  Warlters,  he  should  have  held  that  a  consideration 
must  appear  upon  the  face  of  the  written  instrument.2  But 
even  if  this  were  not  so,3  and  if  by  the  rules  of  common  law 
parol  evidence  were  admissible  to  show  the  consideration 
upon  which  a  promise  was  founded,  it  does  not  seem  to  follow 
that  it  would  be  sufficient  to  supply  so  important  a  term  of 
the  undertaking,  where  the  writing  required  by  the  statute 
is  wholly  silent  in  this  particular. 

§  396.  It  is  further  urged  against  the  rule  in  Wain  v. 
Warlters,  that  the  statute  requires  only  "some  note  or 
memorandum."  But  this  argument  seems  to  overlook  the 
fact  that  those  words  are  put  in  apposition  with  "agreement," 
and  that  lLat  clearly  cannot  be  held  to  be  a  memorandum  of 
an  agreement,  which  entirely  fails  to  note  or  commemorate 
so  essential  and  important  a  feature  of  it  as  the  considera- 
tion upon  which  it  is  entered  into,  and  without  which,  even 

1  Saunders  r.  Wakefield,  4  Barn.  &  Aid.  595. 
8  Morley  v.  Boothby,  3  Bing.  112. 

8  See  Sage  v.  Wilcox,  6  Conn.  81,  and  Miller  v.  Irvine,  1  Dev.  &  B. 
(N.  C.)  Law  103. 


532  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

if  it  were  made,  it  would  be  quite  without  validity  or  value. 
To  use  the  words  of  Mr.  Justice  Richardson,  "They  who 
framed  the  clause  were  aware  that  it  would  be  dangerous  to 
leave  the  word  '  agreement '  unaccompanied,  because  that 
might  have  occasioned  difficulty  through  excess  of  strictness ; 
they  therefore  allowed  a  memorandum  of  the  agreement  to 
be  made,  which,  though  it  should  not  state  the  whole  agree- 
ment in  detail,  should  sufficiently  disclose  the  substantial 
cause  of  action. "  1 

§  397.  Nor  does  there  appear  to  be,  as  has  been  suggested 
by  Mr.  Roberts,2  any  conflict  between  the  rule  that  the 
memorandum  must  show  the  consideration  of  the  engage- 
ment of  the  party  who  signs,  and  the  rule  that  only  the 
party  to  be  charged  need  sign.  The  memorandum  is  required 
to  be  signed  by  the  party  to  be  charged,  because  it  is  thereby 
made  a  statement  or  admission  of  all  the  terms  of  a  contract 
made  by  him,  which  statement  is  put  in  writing  and  to  which 
he  gives  his  assent  by  signing  his  name. 

§  398.  If  the  broad  and  wise  policy  of  the  statute  be  kept 
in  view,  namely,  to  prevent  the  false  and  fraudulent  assertion 
against  men  of  engagements  which  they  never  made,  it  is  at 
least  to  be  lamented  that  so  many  courts,  illustrious  for 
learning,  have  felt  bound  to  hold  that  the  character  of  the 
consideration,  whether  executed  or  executory,  legal  or  ille- 
gal, on  which  the  availability  or  the  very  existence  of  an 
agreement  depends,  should  be  left  to  the  frail  security  of 
oral  testimony. 

§  399.  But  in  those  courts  where  the  doctrine  of  Wain  v. 
Warlters  has  been  received  as  law,  it  is  not  held  necessary 
that  the  consideration  should  be  formally  and  precisely 
expressed  in  the  memorandum.  The  rule  is  sometimes 
stated  to  be,  that  it  is  sufficient  if  it  appear  by  "necessary 
implication"  from  the  terms  of  the  writing.3  Even  this, 

1  Jenkins  r.  Reynolds,  3  Brod.  &  B.  24. 

2  Roberts  on  Frauds,  117  note. 

*  Raikes  v.  Todd,  8  Ad.  &  E.  846.  And  see  Powers  r.  Fowler,  4  El. 
&  B.  511,  and  the  language  of  the  Mercantile  Law  Amendment  Act,  for 
which  see  Appendix. 


CH.    XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  533 

however,  broadly  applied,  would  tend  to  give  an  impression 
of  greater  strictness  than  the  courts  havo  shown  on  this  sub- 
ject. As  was  remarked  by  Jervis,  C.  J.,  in  a  case  in  the 
Common  Pleas,  necessary  implication  does  not  mean  "by 
compulsion,  but  so  as  a  person's  common  sense  would  lead 
him  to  understand."1  The  proper  criterion  in  this  difficult 
class  of  cases  appears  to  have  been  very  clearly  and  judi- 
ciously stated  by  Chief  Justice  Tindal.  "It  would  undoubt- 
edly be  sufficient  in  any  case,"  he  says,  "if  the  memorandum 
is  so  framed  that  any  person  of  ordinary  capacity  must  infer 
from  the  perusal  of  it,  that  such,  and  no  other,  was  the  con- 
sideration upon  which  the  undertaking  was  given.  Not  that 
a  mere  conjecture,  however  plausible,  that  the  consideration 
stated  in  the  declaration  was  that  intended  by  the  memo- 
randum, would  be  sufficient  to  satisfy  the  statute :  but  there 
must  be  a  well-grounded  inference  to  be  necessarily  collected 
from  the  terms  of  the  memorandum,  that  the  consideration 
stated  in  the  declaration,  and  no  other  than  such  considera- 
tion, was  intended  by  the  parties  to  be  the  ground  of  the 
promise. "  2  To  an  exact  appreciation  of  this  rule  a  reference 
to  some  of  the  decisions  is,  however,  indispensable. 

§  400.  A  memorandum  in  these  words :  "  I  guarantee  the 
payment  of  any  goods  which  J.  S.  delivers  to  J.  N. "  was 
held  by  the  Court  of  Queen's  Bench,  only  four  years  after  the 
decision  of  Wain  v.  Warlters,  and  in  affirmance  of  the  ruling 
of  Lord  Ellenborough  (by  whom,  it  will  be  remembered,  that 
case  was  originally  determined  at  nisi  prius),  to  import  upon 
its  face  a  sufficient  consideration,  namely,  the  stipulated 
delivery  of  the  goods.8  For,  as  we  have  had  occasion  to  see,4 
where  a  guaranty  is  made  contemporaneously  with,  and  in 

1  Caballero  r.  Slater,  23  L.  J.  C.  P.  68. 

2  Hawes  ».  Armstrong,  1  Bing.  N.  R.  761. 

•  Stadt  v.  Lill,  9  East  348;  s.  c.  at  nisi  prius,  nom.  Stapp  v.  Lill,  1 
Camp.  242;  Church  v.  Brown,  21  N.  Y.  315  ;  Benedict  v.  Sherill,  Hill  & 
D.  (N.  Y.)  219;  Williams  v.  Ketchum,  19  Wise.  231;  Young  v.  Brown, 
53  Wise.  333;  City  Bank  v.  Phelps,  86  N.  Y.  484. 

4  Ante,  §  191.  " 


534  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

order  to  procure,  the  giving  of  credit  to  the  principal  debtor, 
the  consideration  of  the  latter's  engagement  enures  to,  and 
sustains,  that  of  the  guarantor  also.  But  if  the  words  used 
are  such  that  the  court  cannot  by  any  effort  of  construction 
pronounce  that  they  import  either  a  debt  already  incurred  or 
a  credit  to  be  thereafter  allowed,  the  memorandum  must  be 
held  insufficient,  if  no  other  means  of  arriving  at  the  con- 
sideration be  afforded  by  it.1  Again,  the  following  memo- 
randum :  "  I,  the  undersigned,  do  hereby  agree  to  bind  myself 
to  be  security  to  you  for  Mr.  J.  C.,  late  in  the  employ  of 
Mr.  P.,  for  whatever  (while  in  your  employ)  you  may  entrust 
him  with,  to  the  amount  of  ,£50,  in  case  of  default  to  make 
the  same  good,"  signed  by  the  defendant,  was  held  sufficient. 
It  was  argued  that  the  only  consideration  must  be  that  the 
plaintiff  was  bound  to  take  J.  C.  into  his  service ;  whereas 
by  the  agreement  he  might  or  might  not  be  bound  to  do  so 
or  he  might  have  already  done  so ;  consequently,  there  being 
no  mutuality,  the  contract  was  not  binding.  But  Chief 
Justice  Tindal  said :  "  I  think  you  lay  down  your  rule  too 
largely.  The  written  agreement  must  show  the  considera- 
tion, but  it  need  not  show  '  mutuality. '  If  you  can  by  reason- 
able construction  collect  from  it  the  consideration,  it  is 
enough.  In  this  case,  it  rather  appears  from  the  words  of 
the  contract,  mentioning  C.  as  lately  in  the  employment  of 
another  master,  that  he  was  not  at  the  time  of  its  date  taken 
into  the  plaintiff's  service.  If  so,  it  is  clear  that  the  plain- 
tiff's doing  so  was  the  consideration  of  the  defendant's 
promise;  and  if  by  fair  construction  we  can,  as  it  were,  spell 
out  from  the  contract  that  it  was  so,  it  is  enough."2  So 
where  the  guaranty  was  in  these  terms:  "1  do  hereby  agree 
to  become  surety  for  R.  G.,  now  your  traveller,  in  the  sum 
of  ,£500,  for  all  money  he  may  receive  on  your  account,"  it 
was  held  sufficient  to  sustain  a  declaration  averring  the  con- 

1  Price  r.  Richardson,  15  Mees.  &  W.  539. 

2  Newbery  v.  Armstrong,  Moo.  &  M.  389.     See  also  Kennaway  v.  Tre 
leavan,  5  Mees.  &  W.  498;  Weldin  v.  Porter,  4  Houst.  (Del.)  236. 


CH.   XVIII.]  THE   CONTENTS   OF  THE   MEMORANDUM.  535 

sideration  to  be  that  the  plaintiff  would  keep  and  continue 
the  traveller  in  his  service.1 

§  401.  But  a  memorandum,  "  I  hereby  agree  to  remain 
with  Mrs.  Lees,  .  .  .  for  two  years  from  the  date  hereof, 
for  the  purpose  of  learning  the  business  of  a  dressmaker," 
was  held  not  binding,  because  it  did  not  show  that  the  plain- 
tiff was  bound  on  her  part  to  teach  the  defendant  that  busi- 
ness.2 And  so  where  one  contracted  in  writing  to  work  for 
the  plaintiff,  in  his  trade,  and  for  no  other  person,  during 
twelve  months,  and  so  on  from  twelve  months  to  twelve 
months,  until  the  employer  should  give  notice  of  quitting; 
the  writing  was  held  insufficient.  In  the  latter  case,  it  was 
urged  that  an  agreement  on  the  master's  part  to  pay  might 
be  inferred  as  the  consideration;  but  Lord  Denman,  0.  J., 
said:  "I  do  not  see  how  we  can  infer  that  as  a  consideration 
for  his  confining  himself  to  the  one  employer,  because  any 
person  with  whom  he  worked  would  be  obliged  to  pay  him."3 

§  402.  Again,  where  a  memorandum  states  the  delivery  of 
securities  for  the  payment  of  money  to  the  plaintiff  by  a 
third  person,  and  at  the  same  time  contains  an  engagement 
to  see  them  paid  at  maturity,  it  is  held  that  a  consideration 
for  the  engagement  sufficiently  appears,  namely,  the  plain- 
tiff's extending  credit  to  a  third  person  by  accepting  such 
securities.* 

§  403.  A  rule  of  construction,  however,  well  established  in 
the  general  law  of  evidence,  but  of  comparatively  recent 
application,  it  would  seem,  to  questions  of  this  nature,  is 
often  called  to  the  aid  of  a  memorandum  of  guaranty,  where 
the  terms  used  are  ambiguous  and  may  refer  either  to  a  pre- 
existing liability  of  a  third  party  to  the  creditor,  or  to  one 
which  is  allowed  to  be  incurred  contemporaneously  with  and 
in  confidence  of  the  defendant's  undertaking.  This  is  the 

1  Ryde  v.  Curtis,  8  Dowl.  &  R.  62. 

8  Lees  v.  Whitcorab,  5  Bing.  34. 

•  Sykes  v.  Dixon,  9  Ad.  &  E.  697. 

4  Morris  K.  Stacey,  Holt  153:  Pace  v.  Marsh,  1  Bing.  216.  1 


536  STATUTE   OF   FRAUDS.  [CH.    XVIII. 

admission  of  parol  evidence  to  show  the  circumstances  of  the 
parties  at  the  time  of  contracting,  in  order  to  understand 
correctly  the  language  they  employ.  Under  this  rule  a  memo- 
randum of  guaranty  addressed  to  the  plaintiffs,  in  the  words, 
"In  consideration  of  your  being  in  advance  to  the  third 
party,"  was  sustained  by  parol  evidence,  showing  that  at  the 
time  of  executing  it  no  advance  had  been  made.1  And  in  a 
case,  so  to  speak,  the  converse  of  this,  where  the  words 
were.  "I  hereby  guarantee  B. 's  account  with  A.,"  etc.  ;  it 
appearing  that  there  was  a  pre-existing  account  to  which  the 
words  could  apply,  it  was  held  that  the  guaranty  could  not 
be  sustained.2  The  Supreme  Court  of  New  York,  upon  the 
authority  of  this  latter  case,  have  held  a  guaranty  employing 
the  same  expression  to  be  good,  on  its  being  proved  by  parol 
that  there  was  an  account  between  the  plaintiff  and  the  third 
party  not  existing  when  the  guaranty  was  given,  but  con- 
tracted afterward;  admitting  at  the  same  time,  that  if  the 
words  "your  account"  had  necessarily  implied  a  precedent 
account,  the  letter  containing  them  would  have  been  insuffi- 
cient as  not  showing  an  available  consideration.3  In  a  case 
in  the  Exchequer,  the  language  of  the  memorandum  was, 
"In  consideration  of  your  having  released  the  above-named 
defendant  from  custody  I  hereby  engage,  within  one  month 
from  this  date,  to  pay  you, "  etc.  It  appeared  that  the  release 
was  in  fact  given  after  the  memorandum  was  made  and 
accepted.  The  court  held  that  the  engagement  might  be 
construed  to  be,  as  it  really  was,  prospective  on  the  release, 
and  that  it  might  be  read  thus:  "I  hereby  engage,  etc.,  with- 
in one  month,  in  consideration  of  your  having  then  released," 
etc.4  So  also  in  the  same  court,  where  the  words  were,  "In 
consideration  of  your  having  advanced,"  etc.,  and  it  was 

i  Haigh  v.  Brooks,  10  Ad.  &  E.  309. 
a  Allnutt  v.  Ashenden,  5  Man.  &  G.  392. 

8  Walrath  v.  Thompson,  4  Hill  200.     But  see  Weed  v.  Clark,  4  Sand 
31. 

4  Butcher  v.  Steuart,  11  Mees.  &  W.  857. 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  537 

proved  that  the  advance  was  made  after  the  memorandum.1 
And  so  in  the  House  of  Lords,  in  a  case  where  the  action 
had  been  brought  upon  a  memorandum  containing  this  ex- 
pression :  "  Entertaining  the  highest  opinion  of  Mr.  P.  C.  's 
integrity,  .  .  .  we,  therefore,  hold  ourselves  responsible  to 
you  in  the  sum  of  .£500  sterling,  for  his  discharging  faith- 
fully and  honestly  any  duty  assigned  to,  or  trust  reposed  in 
him, "  the  memorandum  was  held  sufficient ;  Lord  Tenterden 
advising  the  Lords,  "  It  appears  that  at  the  time  when  this 
letter  was  written,  C.  had  no  situation  or  employment  under 
the  defendants  in  error.  The  House,  therefore,  has  a  right 
to  understand  the  letter  as  though  it  expressed  a  promise  to 
be  responsible  for  C.  if  the  defendants  in  error  would  employ 
him."2  Under  a  statute  of  frauds  which  required  the  con- 
sideration of  a  contract  to  answer  for  the  debt  of  another  to 
be  expressed  in  writing,  a  guaranty  by  a  third  person  of  a 
negotiable  promissory  note  need  not  express  any  considera- 
tion if  written  upon  the  note  before  it  is  delivered,  and  first 
takes  effect  as  a  contract;  but  must,  if  written  afterwards.3 

§  404.  We  have  seen  in  a  previous  chapter  that  a  creditor's 
forbearance  to  sue  his  debtor  is  an  adequate  consideration, 
moving  from  the  creditor,  to  support  a  guaranty  by  a  third 
party  that  the  debt  shall  be  paid  at  a  subsequent  day.  The 
memorandum  of  guaranty  of  such  a  debt,  therefore,  will  be 
sufficient  for  the  purposes  of  the  rule  we  are  now  examining, 
if  it  afford  a  reasonable  inference  that  the  inducement  of  the 
guaranty  was  the  creditor's  giving  time  to  the  debtor.4  It 
is  quite  plain  that  his  forbearance  is  not  necessarily  inferred 

1  Goldshede  v.  Swan,  1  Exch.  154. 

2  Lysaght  v.  Walker,  5  Bligh,  N.  8.  27.     See  further,  in  illustration  of 
the  same  rule,  Thornton  v.  Jenyns,  1  Man.  &  G.  166;  Steele  v.  Hoe,  14 
Q.  B.  431;  Edwards  v.  Jevons,  8  C.  B.  436;  Bainbridge  v.  Wade,  16  Q.  B. 
89;  Shortrede  v.  Cheek,  1  Ad.  &E.  57;  D'Wolf  ».  Rabaud,  1  Pet.  (U.  S.) 
476. 

•  Moses  v.  Lawrence  County  Bank,  149  U.  S.  298. 
4  Powers  v.  Fowler,  4  El.  &  B.  511;  Emmott  r.  Kearns,  5  Bing.  N.  R 
559;  Patchin  v.  Swift,  21  Vt.  292. 


538  STATUTE   OF  FRAUDS.  [cH.  XVIIL 

to  be  the  consideration  of  a  guaranty,  because  the  memo- 
randum refers  to  the  debt  as  already  due.1  And  although, 
as  has  been  already  remarked,  a  memorandum  stating  the 
delivery  therewith  to  a  creditor  of  securities  for  the  payment 
of  money  by  a  third  party,  and  engaging  to  see  them  paid  at 
maturity,  may  be  supported  upon  the  inference  that  the  con- 
sideration of  such  engagement  was  the  plaintiff's  giving  the 
third  person  credit  until  their  maturity ;  yet  it  is  held  that 
such  a  memorandum  cannot  be  construed  to  import  the  for- 
bearance of  the  creditor,  for  the  period  which  the  securities 
have  to  run,  to  enforce  an  old  debt;  and  a  demurrer  to  a 
declaration  setting  out  the  memorandum,  and  alleging  for- 
bearance as  the  consideration,  will  be  sustained.2 

§  405.  As  a  general  rule,  however,  in  all  cases  where  the 
language  of  the  memorandum  shows  with  reasonable  clear- 
ness that  the  defendant's  promise  is  designed  to  procure 
something  to  be  done,  forborne,  or  permitted  by  the  party  to 
whom  it  is  made,  either  to  or  for  the  promisor  or  a  third 
party,  such  act,  forbearance,  or  permission,  so  stipulated  for 
by  the  defendant,  is  taken  to  be  the  inducement  to  his 
promise;  and  the  suggestion  of  it  in  his  memorandum,  pre- 
venting him  from  asserting  that  his  promise  is  without  con- 
sideration, suffices  to  make  the  memorandum  binding  upon 
the  plaintiff.3  Where  a  guaranty  refers  partly  to  a  credit 

1  Wain  v.  Warlters,  5  East  10;    Clancy  ».  Piggott,  2  Ad.  &  E.  473; 
Cole  v.  Dyer,  1   Cromp.   &  J.  461;  James  v.  Williams,   5  Barn.  &  Ad. 
1109;  Smith  v.  Ives,  15  Wend.  (N.  Y.)  182.     But  ste  Neelson  v.  San- 
borne,  2  N.  H.  413. 

2  Hawes  v.  Armstrong,  Bing.  N.  R.  761,  which  in  this  respect  seems 
inconsistent  with  Boehm  v.  Campbell,  8  Taunt.  679. 

3  The  rule  is  derived  from  the  various  cases  previously  cited  and  ex- 
plained in  reference  to  this  subject;  to  which  may  be  added,  for  further 
illustration,  the  following  :  Benson  v.  Hippius,  4   Bing.  455;  Redhead  v. 
Cator,  1    Stark.    14;    Coe  v.   Duffield,  7  Moore  252;  Peate  v.  Dicken,  1 
Cromp.  M.  &  R.  422;    Colbourn  v.  Dawson,   10  C.    B.   765;    Rogers   v. 
Kneeland.  10  Wend.  (N.Y.)  252  ;  Marquand  v.  Hipper,  12  Wend.  (N.  Y.) 
520;  Waterbury  v.  Graham,  4  Sand.  (N.  Y.)  215.     The  Revised  Statutes 
of  New  York  (see  Appendix)  provided  that  the  consideration   shall  be 
expressed  in  the  memorandum.     Upon  the  force  of  this  word  much  has 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  539 

previously  given,  and  partly  to  a  credit  to  be  thereupon 
given,  to  the  third  party,  the  latter  of  course  will  be  suffi- 
cient to  uphold  the  memorandum.1 

§  406.  But  it  is  not  always  necessary  that  the  defendant's 
memorandum  should  in  itself  contain  any  words  from  which 
the  inducement  to  his  promise  can  be  inferred.  If,  for  in- 
stance, he  makes  himself  a  party  to  a  written  agreement 
between  two  others,  and  in  that  agreement  it  is  stipulated 
that  he  is  to  be  answerable  for  the  performance  on  the  part 
of  one  of  them,  this  close  connection  between  his  guaranty 
and  the  agreement  will  show  that  the  consideration  of  the 
guaranty  was  the  making  of  the  agreement.2  Again,  if  at 
the  time  of  making  the  principal  agreement,  and  as  part  of 
one  entire  transaction  between  those  concerned,  the  guaranty 
be  indorsed,  or  otherwise  written  upon  it,  or,  being  on  a 
separate  paper,  refer  to  it,3  the  consideration  of  the  guaranty 

been  said  in  the  courts  of  that  State,  but  upon  the  whole  it  seems  to 
involve  no  important  modification  of  the  principle  stated  in  the  text.  See 
the  cases,  Packer  v.  Willson,  15  Wend.  343;  Smith  v.  Ives,  15  Wend. 
182;  Bennett  v.  Pratt,  4  Denio,  275;  Staats  v.  Howlett,  4  Denio  559; 
Douglass  v.  Howland,  24  Wend.  35;  Union  Bank  of  Louisiana  v.  Coster, 
1  Sand.  533;  Gates  v.  McKee,  13  N.  Y.  232;  Barney  v.  Forbes,  118  N.  Y. 
580;  O'Bannou  v.  Chumasero,  3  Montana  419;  Kenney  v.  Hews,  26  Neb. 
213. 

1  White  v.  Woodward,  5  C.  B.  810;  Wood  v.  Benson,  2  Cromp.  &  J. 
94;  Russell  v.  Moseley,  3  Brod.  &  B.  211;  Gates  v.  McKee,  13  N.  Y.  232. 
Also  Raikes  v.  Todd,  8  Ad.  &  E.  846,  which  is  explained  in  Caballero  v. 
Slater,  14  C.  B.  300. 

2  Caballero  v.  Slater,  14  C.  B.  300. 

3  Stead   w.  Liddard,  1    Bing.  196;  Colrlham  v.  Showier,  3  C.   B.  312; 
Adams  v.  Bean,  12  Mass.  136;  Bailey  v.  Freeman,  11  Johns.  (N.  Y.)221; 
Douglass  v.  Howland,  24   Wend.  (N.  Y.)  35;  Lecat  v.  Tavel,  3  McCord 
(S.  C.)  Law  158;  Dorman  v.  Bigelow,  1  Fla.  281;  Simons  v.  Steele.  36 
N.  H.  73.     See,  however,  Draper  ».  Snow,  20  X.  Y.  331 ;  Otis  r.  Hasel- 
tine,  27  Cal.  80.     But  an   indorsement,  etc.,  subsequently  to  the  making 
and  delivery  of  the  principal  obligation  is  not  sufficient,  without  itself 
showing  the  consideration.    Hall  r.  Farmer,  2  N.  Y.  553,  affirming  on  error 
the   judgment  of    the   Supreme  Court,   in   5    Denio   484;    Brewster   t>. 
Silence,  8  N.  Y.  207,  affirming  the  judgment  of  the  Supreme  Court,  in  11 
Barb.  144;  Rigby  v.  Norwood,  34  Ala.  129;  Gould   v.  Mori ng,  28  Barb. 
(N.  Y.)  444;  Wood  r.  Wheelock,  25  Barb.  (N.  Y.)  625.     Or  even  at  the 


540  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

will  in  like  manner  be  held  to  appear,  namely,  the  plaintiff's 
becoming  a  party  to  the  principal  agreement ;  and  the  fact 
that  the  two  instruments  were  so  connected  in  time,  and  that 
their  delivery  formed  one  entire  transaction,  may  be  proved 
by  parol  evidence. 

§  407.  Such  was  the  decision  of  the  Supreme  Court  of  New 
York,  pronounced  by  Chief  Justice  Kent,  in  the  case  of 
Leonard  v.  Vredenburgh.  There  the  defendant  wrote  and 
signed,  at  the  foot  of  a  promissory  note,  purporting  to  be  for 
value  received,  the  words,  "I  guaranty  the  above."  The 
facts  were  that  the  maker  of  the  note  had  applied  to  the 
plaintiff  for  certain  goods  upon  credit,  but  the  plaintiff  had 
refused  to  furnish  them  to  him  without  security,  whereupon 
the  note  was  made,  with  the  defendant's  guaranty  appended, 
the  whole  delivered  to  the  plaintiff,  and  the  goods  furnished 
as  desired.  At  the  trial,  the  plaintiff  offered  parol  testi- 
mony to  show  this  connection  between  the  making  of  the 
note  and  the  giving  of  the  guaranty;  but  the  Chief  Justice 
himself  rejected  it,  as  an  attempt  to  prove  the  consideration 
of  the  guaranty  by  parol.  On  subsequent  argument  before 
the  full  court,  he  united  with  them  in  a  different  conclusion, 
and  the  opinion  then  delivered  by  him  is  one  of  important 
bearing  upon  this  branch  of  our  investigation.  He  remarks 
that,  admitting  the  origin  of  the  contract  to  be  such  as  the 
plaintiff  offered  to  show,  there  was  no  necessity  for,  nor  was 
there  in  fact,  any  consideration  passing  directly  between 
him  and  the  defendant,  and  of  course  none  was  to  be  proved ; 
that  it  was  one  original  and  entire  transaction,  and  the  sale 
and  delivery  of  the  goods  supported  the  promise  of  the  defend- 
some  time,  if  the  principal  obligation  is  made  in  payment  of  a  pre-existing 
debt.  Hall  v.  Farmer,  supra.  The  cases  of  Lequeer  v.  Prosser,  1  Hill 
(N.  Y.)  256;  and  Manrow  v.  Durham,  3  Hill  (N.  Y.)  584,  seem  to  have 
been  overruled  by  the  two  just  cited.  Moog  v.  Strang,  69  Ala.  98.  It  is 
held  in  New  Jersey  (Freeh  v.  Yawger,  47  N.  J.  Law  157)  that  an  in- 
dorsement of  a  note  after  maturity  is  good,  notwithstanding  that  the 
consideration  does  not  appear  otherwise  than  from  the  fact  of  the 
indorsement. 


CH.   XVIII.]  THE   CONTENTS   OF  THE   MEMORANDUM.  541 

ant  as  well  as  that  of  the  purchaser;  and  he  adds:  "The 
writing  imported,  upon  the  face  of  it,  one  original  and  entire 
transaction ;  for  a  guaranty  of  a  contract  implies,  ex  vi  ter- 
mini, that  it  was  a  concurrent  act,  and  part  of  the  original 
agreement.  .  .  .  Upon  the  whole,  we  think  that  the  plaintiff 
was  entitled  to  recover,  upon  production  and  proof  of  the 
writing.  But  if  there  was  any  doubt  upon  the  face  of  the 
paper,  whether  the  promise  of  J.  [the  purchaser]  and  that  of 
the  defendant  were  or  were  not  concurrent  and  one  and  the 
same  communication,  the  parol  proof  was  admissible  to  show 
that  fact. "  1 

§  408.  It  will  be  observed  that  such  a  case  as  the  above 
differs  from  those  in  which  a  guaranty  is  on  its  face  expressed 
to  be  for  the  security  of  credit  which  is  to  be  allowed  to  the 
third  party,  in  this,  that  it  merely  refers  to  another  writing 
from  which  that  credit  appears;  the  parol  evidence  being 
admitted  for  the  purpose  of  establishing,  between  the  two, 
that  unity  of  time  and  transaction  which  would  be  manifest 
if  they  were  both  comprised  in  one  instrument.  And  such 
seems  to  be  the  light  in  which  the  distinguished  judge  whose 
words  we  have  been  quoting  regarded  it.  But  in  another 
part  of  that  opinion  he  remarks  upon  the  case  before  him, 
that  the  purchaser's  note  "given  for  value  received,  and,  of 
course,  importing  a  consideration  on  its  face,  was  all  the 
consideration  requisite  to  be  shown.  The  paper  disclosed 
that  the  defendant  guarantied  this  debt  of  J.  [the  purchaser] ; 
and  if  it  was  all  one  transaction,  the  value  received  was  evi- 

1  Leonard  v.  Vredenhurgh,  8  Johns.  (N.  Y  )  40 ;  Union  Bank  of  Lou- 
isiana v.  Coster,  3  N.  Y.  203;  D'Wolf  v.  Rabaud,  1  Pet.  (U.  S.)  476. 
The  first  of  these  cases  is  sometimes  said  to  have  decided  that  the  rule 
in  Wain  r.  Warlters  did  not  apply  to  guaranties  made  contemporaneously 
with,  and  for  the  purpose  of,  procuring  the  credit  to  be  given  to  the 
third  party.  See  Smith  v.  Ide,  3  Vt.  290;  Lecat  i>.  Tavel,  3  McCord 
(S.  C.)  Law  158.  But  this  appears  to  be  a  misapprehension  of  that  case, 
which  really  decided,  not  that  the  memorandum  of  such  guaranties  need 
not  show  any  consideration,  but  that  it  need  not  show  a  separate  one  from 
that  which  supported  the  third  party's  obligation.  The  decision  has 
lately  been  disapproved,  but  it  would  seem  unnecessarily,  in  the  N.  Y- 
Court  of  Appeals.  Brewster  v.  Silence,  8  N.  Y.  207. 


542  STATUTE   OF  FRAUDS.  [CH.    XVIII. 

dence  of  a  consideration  embracing  both  the  promises."  Are 
we  then  to  conclude  that  the  principal  agreement,  with  which 
a  memorandum  of  guaranty  is  thus  shown  to  have,  been  con- 
nected as  one  transaction,  must  itself  express  on  its  face,  or 
necessarily  import,  a  consideration  ?  The  whole  tenor  of  the 
opinion  seems  to  show  that  the  case  was  not  determined  upon 
that  reasoning,  and  we  may  therefore  be  pardoned  for  sug- 
gesting a  doubt  in  regard  to  it.  If  it  were  enough  that  the 
principal  agreement  expressed  or  imported  a  consideration, 
it  would  seem  to  follow  that  a  guaranty  written  upon  it  at  a 
subsequent  date  would  be  supported  by  such  consideration ; 
but  this  is  clearly  not  so.1  It  must  be  written  contempora- 
neously with  it  and  as  part  of  the  same  transaction.  But  if 
so  written,  is  it  not  enough,  although  the  principal  agree- 
ment do  not  itself  express  or  import  a  consideration  ?  Sup- 
pose the  case  of  an  engagement  from  A.  to  B.,  which  would  be 
good  by  parol,  but  is  in  fact  reduced  to  writing,  and  contains 
no  statement  or  implication  of  the  consideration  upon  which 
it  is  founded  beyond  the  fact  that  a  credit  has  been  given  to 
A.  by  B.  ;  and  upon  this  engagement,  at  the  same  time,  and  as 
part  of  the  same  transaction,  C.  writes  a  guaranty  that  it 
shall  be  performed ;  it  is  submitted  that  C.  is  liable,  his 
memorandum  showing  the  consideration  of  his  guaranty, 
namely,  B.  's  acceptance  of  A.  's  engagement.  That  engage- 
ment is  binding  upon  A.,  though  the  consideration  be  not 
stated  or  necessarily  implied  in  the  writing,  but  proved  by 
parol ;  and  consequently  the  acceptance  of  it  by  B.  is  a 
valid  inducement  to  support  C. 's  guaranty  that  it  shall  be 
performed.2 

§  408  a.  A  memorandum  expressed  to  be  for  "value  .re- 
ceived, "  is  held  to  state  the  consideration  sufficiently  for  the 
purposes  of  the  statute.3 

1  Ante,  §§  191,400. 

2  The  view  which  is  here  attempted  to  be  controverted  seems  to  be 
that  entertained,  however,  by  an  American  author  of  much  consideration. 
See  Parsons  on  Contracts,  vol.  ii.  p.  297. 

8  Cooper  v.  Dedrick,  22  Barb.  (N.  Y.)  516 ;  Day  v.  Elmore,  4  Wise. 


CH.    XVIII.]          THE   CONTENTS   OF   THE   MEMORANDUM.  543 

§  409.  Where  a  contract,  within  the  Statute  of  Frauds,  has 
been  put  in  writing,  it  is  of  course  governed  by  the  rule 
excluding  oral  evidence  of  what  passed  by  way  of  agreement 
or  proposition  before  or  at  the  time  of  making  the  contract 
in  writing,  between  the  parties  to  it;  a  rule  which  prevails 
as  well  in  equity,  wherever  such  evidence  is  offered  to  sus- 
tain the  plaintiff's  suit,  as  in  actions  at  law.1  On  the  other 
hand,  it  is  competent  to  show  by  oral  evidence  the  circum- 
stances under  which  the  written  agreement  was  made,  so  far 
as  they  may  tend  to  aid  the  construction  or  application  of  its 
contents.  Again,  it  is  a  familiar  principle  of  equity,  when 
the  court  is  called  upon  to  decree  the  specific  execution  of  a 
written  agreement,  that  the  defendant  may  by  parol  evidence 
prove  that  by  fraud,  mistake,  or  surprise,  the  writing  fails  to 
show  the  real  agreement  entered  into  by  the  parties.  And 
the  Statute  of  Frauds  does  not  interdict  such  evidence  in 
such  cases.  To  use  the  language  of  Lord  Redesdale,  before 
quoted,  "The  statute  does  not  say  that  if  a  written  agree- 
ment is  signed,  the  same  exception  shall  not  hold  to  it  that 
did  before  the  statute.  ...  It  does  not  say,  that  a  written 
agreement  shall  bind,  but  that  an  unwritten  agreement  shall 
not  bind."2 

§  409  a.  There  is,  however,  a  further  rule,  prevailing  at 
common  law,  in  regard  to  which  it  is  a  matter  of  some 
difficulty  to  ascertain  how  far,  if  at  all,  it  applies  to 
contracts  required  to  be  in  writing  by  the  provisions  of 
the  statute.  This  rule  is  that  a  contract  reduced  to  writing 
may,  by  oral  agreement  of  the  parties  subsequently  made, 
and  before  any  breach  has  occurred,  be  varied  in  one  or 
more  of  its  terms  or  be  wholly  waived  or  discharged;  the 
contract,  when  so  varied,  subsisting  partly  in  writing  and 

190;  Miller  v.  Cook,  23  N.  Y.  495;  Emerson  »'.  Aultman,  69  Md.  125; 
Osborne  i>.  Baker,  34  Minn.  307. 

1  See  Snelling  v.  Thomas,  L.  R.  17  Eq.  303;  Garbanati  v.  Fassbinder, 
15  Col.  535. 

a  Clinan  v.  Cooke,  1  Schoales  &  L.  39 ;  Glass  v.  Hulbert,  102  Mass 
24,  35. 


544  STATUTE   OF   FRAUDS.  [CH.   XVIII. 

partly  in  parol,  and  as  such  remaining  obligatory  upon  the 
parties.1 

§  410.  We  have  already  seen  that  if  the  "  bargain "  or 
"  agreement  "  has  not  been  put  in  writing,  the  memorandum 
must  show  the  terms  as  stipulated  by  the  parties  at  the  time 
of  making  the  contract.  The  question  now  is,  how  far  the 
parties  may,  by  a  subsequent  oral  agreement,  waive,  add  to, 
or  vary  the  terms  contained  in  the  written  contract,  or  the 
memorandum. 

§  411.  It  seems  to  be  well  established  that  where  a  con- 
tract, affected  by  the  statute,  has  been  put  in  writing,  and 
the  plaintiff,  in  a  case  of  subsequent  oral  variation  of  some 
of  the  terms  of  the  written  agreement,  declares  upon  the 
writing  as  qualified  by  the  oral  variation,  he  cannot  prevail. 
The  decision  in  Cuff  v.  Penn,  one  of  the  earliest  and  most 
important  cases  of  this  class,  was  in  fact  to  the  contrary;2 
but  from  the  report  the  point  does  not  seem  to  have  been  dis- 
tinctly in  the  mind  of  the  court,  the  whole  stress  of  the 
opinion  bearing  upon  another  position;  and  later  English 
and  American  authorities  have  conclusively  settled  the  rule 
as  above  laid  down.3 


1  Goss  v.  Lord  Nugent,  5  Barn.  &  Ad.  58;  1  Greenl.  Ev.  §  34;  1  Phil- 
lips Ev.  (Cowen  &  Hill's  ed.)  563,  note,  987. 

2  Cuff  v.  Penn,  1  Maule  &  S.  21.     In  the  judgment  of  the  Supreme 
Court  of  Massachusetts  in  Stearns  v.  Hall,  9  Cush.  31,  this  case  appears 
to  be  misapprehended  in  this  respect.     It  is  there  spoken  of  as  having 
been  an  action  upon  the  original   written   contract.     But,   in    fact,  the 
declaration  in  Cuff  ;>.   Penn  contained  three  counts,  the  first  upon  that 
contract,  and  the  second  and  third  on  the  contract  as  afterward  varied  by 
parol ;  and  it  was  on  these  latter  counts  that  the  plaintiff's  verdict  was 
rendered  and  sustained. 

8  See  the  cases  referred  to  hereafter,  §  414.  The  Supreme  Court  of 
Massachusetts  fully  admit  the  truth  of  this  proposition  in  Cummings  v. 
Arnold,  3  Met.  486.  See  further,  Jordan  v.  Sawkins,  1  Ves.  Jr.  402; 
Parteriche  ».  Powlet,  2  Atk.  383;  Blood  c.  Goodrich,  9  Wend.  (N.  Y.) 
68;  Rogers  v.  Atkinson,  1  Kelly  (Ga.)  12;  Bryan  v.  Hunt,  4  Sneed 
(Tenn.)  543;  Dana  v.  Hancock,  30  Vt.  616;  Whittier  v.  Dana,  10  Allen 
(Mass.)  326;  Noble  v.  Ward,  L.  R.  1  Exch.  117;  Carpenter  v.  Galloway, 
73  Ind.  418;  Heisley  v.  Swanstrom,  40  Minn.  196;  Hill  v.  Blake,  97  N.  Y. 


CH.   XVIII.]  THE  CONTENTS   OF  THE   MEMORANDUM.  545 

§  412.  But,  this  rule  being  admitted  as  correct,  there 
remain  two  questions  of  some  interest  and  importance  which 
it  suggests.  First.  In  what  cases,  if  any,  can  it  be  said  that 
notwithstanding  a  subsequent  oral  variation  of  the  agreement 
in  some  respect,  the  original  contract  substantially  remains  ? 
Secondly.  How  far  may  such  variation  be  made  available  to 
the  parties,  otherwise  than  by  a  direct  proceeding  to  enforce 
the  contract  as  varied  ? 

§  413.  In  the  case  of  Cuff  v.  Penn,  before  referred  to, 
where  the  parties  to  a  written  agreement  for  the  sale  of 
goods,  specifying  the  times  at  which  they  were  to  be  delivered, 
subsequently  made  a  verbal  change  postponing  such  delivery, 
it  was  remarked  by  Lord  Ellenborough  that  "the  contract 
remained,"  notwithstanding  the  verbal  stipulation  for  a  "sub- 
stituted performance."  The  distinction  here  suggested  be- 
tween the  contract  itself,  as  being  alone  that  which  the 
statute  requires  to  be  proved  by  writing,  and  the  performance 
of  it,  as  being  something  distinct  therefrom  and  to  which 
the  statute  has  no  application,  has  occasioned,  by  a  some- 
what undiscriminating  application  of  it,  much  of  the  embar- 
rassment attending  this  subject.  For  certain  purposes,  as 
will  be  seen  hereafter,  the  distinction  clearly  exists  and 
must  be  applied;  but  not  in  any  such  way  as  to  impair  the 
integrity  of  the  rule  heretofore  stated ;  and  such  is  the  clear 
result  of  the  later  authorities,  both  English  and  American. 

§  414.  In  the  case  of  Goss  v.  Lord  Nugent,  there  was  a 

216;  Randolph  r.  Frick.  50  Mo.  App.  275;  Rucker  v.  Harrington,  52  Mo. 
App.  481;  Burns  v.  Fidelity  Real  Estate  Co.,  52  Minn.  31.  In  Low  v. 
Treadwell,  12  Me.  441,  and  Grafton  Bank  v.  Woodward,  5  N.  H.  99,  Mr. 
Chitty  is  cited  as  saying  in  his  Law  of  Contracts,  that  "  a  subsequent  parol 
agreement  not  contradicting  the  terms  of  the  original  contract,  but  merely 
in  continuance  thereof,  and  in  dispensation  of  the  performance  of  its  terms 
as  in  prolongation  of  the  time  of  execution,  is  good,  even  in  the  case  of  a 
contract  reduced  to  writing,  under  the  Statute  of  Frauds."  In  neither 
of  those  cases,  however,  was  it  found  necessary  to  apply  this  doctrine 
judicially,  the  contracts  in  question  not  being  within  the  statute;  and  it 
does  not  seem  to  have  been  reasserted  in  the  later  editions  of  that 
esteemed  author  See  9th  Amer.  from  5th  Lond.  ed. 

35 


546  STATUTE   OF  FRAUDS.  [CH.    XVIIL 

written  agreement  by  which  the  defendant  was  to  purchase 
certain  lots  of  land,  and  the  plaintiff  bound  himself  to  make 
a  good  title  to  them  all.  Subsequently  he  was,  by  verbal 
arrangement  with  the  defendant,  released  from  this  obliga- 
tion as  to  one  of  the  lots,  and  the  defendant  took  possession 
of  the  whole.  Upon  the  plaintiff's  suing  him  for  the  unpaid 
balance  of  the  purchase-money  of  the  whole,  however,  and 
declaring  upon  the  agreement  as  so  altered,  he  objected  that 
the  agreement,  in  order  to  charge  him  upon  it,  must  be 
wholly  in  writing;  and  the  court  sustained  the  objection, 
and  set  aside  the  verdict  which  the  plaintiff  had  obtained 
below. l  So  in  Harvey  v.  Grabham,  where  the  subject-matter 
of  the  oral  variation  was  merely  the  method  of  valuation  of 
certain  straw,  etc.-,  which  was,  by  written  agreement  for  the 
sale  of  land,  reserved  to  the  vendor.2  So  in  Stead  v.  Dawber, 
a  decision  of  the  Queen's  Bench,  where  the  oral  variation 
was,  as  in  Cuff  v.  Penn,  simply  in  the  time  of  delivery  of  a 
cargo  contracted  for  by  the  plaintiff.3  And  so  in  Marshall  v. 
Lynn,  a  decision  of  the  Court  of  Exchequer,  upon  similar 
facts.4 

§  415.  The  ground  upon  which  the  cases  just  cited  were 
all  decided  is  this:  that  the  plaintiff  sued  upon  a  contract 
which  the  Statute  of  Frauds  required  to  be  in  writing,  but 
which  in  fact  was  partly  in  writing  and  partly  in  parol ;  and 
that  although  originally  put  in  writing,  and  varied  only  as 
to  the  manner  of  performance,  still  the  suit  could  not  be  said 
to  be  upon  the  original  written  contract,  but  upon  a  new 
contract  made  out  by  incorporating  therewith  certain  oral 
stipulations.5 

1  Goss  v.  Lord  Nugent,  5  Barn.  &  Ad.  58. 

2  Harvey  v.  Grabham,  5  Ad.  &  E.  61. 

8  Stead  v.  Dawber,  10  Ad.  &  E.  57.  But  where  the  first  contract  is 
valid,  and  the  second,  or  modifying  one  is  within  the  statute,  the  first 
can  still  be  enforced.  See  Noble  v.  Ward,  L.  R.  1  Exch.  117;  L.  R. 
2  Exch.  135 ;  Sanderson  v.  Graves,  L.  R.  10  Exch.  234. 

4  Marshall  v.  Lynn,  6  Mees.  &  W.  109. 

6  See  Barton  v.  Gray,  57  Mich.  622. 


CH.   XVIII.J          THE   CONTENTS   OF   THE   MEMORANDUM.  54? 

§  416.  It  clearly  appears  from  these  cases,  and  indeed  it 
could  hardly  be  questioned,  that  the  rule  must  apply  equally 
to  all  contracts  embraced  by  the  provisions  of  the  statute, 
whether  bargains  for  goods,  under  the  seventeenth  section, 
or  any  of  the  various  agreements  enumerated  in  the  fourth. 

§  417.  They  show  also  that  no  exception  can  be  founded 
upon  the  question  whether  the  particular  in  respect  of  which 
the  oral  variation  is  made,  is  itself  a  material  particular  of 
the  contract.  In  the  case  of  Stead  v.  Dawber,  it  is  true, 
where  the  value  of  an  article  contracted  for  had  risen  in  the 
interval  between  the  time  fixed  by  the  writing  for  delivery 
and  the  time  to  which  it  was  afterward  verbally  posptoned, 
the  court  lay  some  stress  upon  that  fact  as  showing  the  time 
of  delivery  to  have  been  essential  to  the  bargain.1  But  this 
distinction  finds  no  countenance  in  any  other  of  the  cases 
referred  to,  whether  prior  or  subsequent  to  itself.  Thus  in 
Goss  v.  Lord  Nugent,  the  Chief  Justice  Lord  Denman  said, 
alluding  to  the  suggestion  that  the  waiver  of  title  as  to  one 
of  the  number  of  lots  was  only  an  abandonment  of  a  colla- 
teral point,  "We  think  the  object  of  the  Statute  of  Frauds 
was  to  exclude  all  oral  evidence  as  to  contracts  for  the  sale 
of  lands,  and  that  any  contract  which  is  sought  to  be  enforced 
must  be  proved  by  writing  only."  And  while  insisting  that 
the  title  to  a  piece  of  land  was  by  no  means  a  non-essential  of 
a  contract  for  its  purchase,  he  distinctly  says  that  the  opin- 
ion of  the  court  is  not  formed  upon  that  view,  but  "  upon  the 
general  effect  and  meaning  of  the  Statute  of  Frauds,  and 
that  the  contract  now  brought  forward  by  the  plaintiff  is  not 
wholly  a  contract  in  writing."2 

§  418.  Again,  in  Marshall  v.  Lynn,  where  the  oral  varia- 
tion was  in  respect  of  the  time  fixed  for  the  delivery  of  a 
cargo,  and  it  was  contended  by  counsel  that  this  time  ap- 
peared to  be  a  material  part  of  the  contract,  and  the  court, 
on  the  broad  ground  heretofore  stated,  denied  the  plaintiff's 

1  Stead  ».  Dawber,  10  Ad.  &  E.  57. 

a  Goss  »>.  Lord  Nugent,  5  Barn.  &  Ad.  67. 


548  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

claim  to  recover,  Mr.  Baron  Parke  took  occasion  to  say  that 
it  seemed  to  him  "to  be  unnecessary  to  inquire  what  are  the 
essential  parts  of  the  contract  and  what  not,  and  that  every 
part  of  the  contract,  in  regard  to  which  the  parties  are  stipu- 
lating, must  be  taken  to  be  material ; "  and  he  alludes  to  the 
suggestion  made  in  Stead  v.  Dawber,  with  the  remark  that 
it  might  be  considered  as  laying  down  too  limited  a  rule. 
In  the  course  of  the  argument  he  had  already  said,  "  No  doubt 
every  particular  of  the  contract  need  not  be  mentioned ;  but 
if  mentioned  it  must  be  observed."1 

§  419.  Again,  in  the  case  of  Harvey  v.  Grabham,  the  oral 
variation  was  in  respect  of  a  particular  which  was  in  the 
first  instance  not  required  to  be  in  writing,  namely,  the 
valuation  back  to  one  party  of  certain  straw,  etc.,  lying  upon 
land  which  he  had  contracted  to  lease  to  the  other;  but  this 
particular  had  been,  in  fact,  put  in  writing  as  part  of  one 
entire  transaction  with  the  contract  to  lease  the  land.  Even 
there,  the  court  held  that  on  a  declaration  upon  the  stipula- 
tion for  payment  for  the  straw,  etc.,  as  making  part  of  the 
entire  contract,  including  the  engagement  to  lease  the  land, 
the  plaintiff  could  not  enforce  the  orally  substituted  valua- 
tion. If  he  could,  says  Lord  Denman,  speaking  for  the 
court,  "it  would  follow  that,  should  the  present  plaintiff 
hereafter  refuse  to  execute  the  lease,  the  present  defendants, 
in  suing  for  such  refusal,  would  be  obliged  to  state  the  altered 
agreement  as  the  consideration,  and  aver  a  readiness  to  per- 
form it,  and  would  have  to  prove  their  case  partly  by  writing 
and  partly  by  oral  evidence ;  the  very  predicament  which  the 
Statute  of  Frauds  was  intended  to  prevent. "  2 

§  420.  And  in  illustration  of  this  case  and  others  which 
discard  the  distinction  as  to  the  oral  variation  being  in 
respect  of  a  particular  which  is  material  or  immaterial  to 
the  contract,  or  within  or  without  the  Statute  of  Frauds,  it 
may  not  be  without  profit  to  recur  to  a  principle  which  has 

*  Marshall  v.  Lynn,  6  Mees.  &  W.  116,  117. 
2  Harvey  r.  Grabham,  5  Ad.  &  E.  74. 


CH.   XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  549 

been  discussed  in  a  previous  chapter.  We  there  saw  that 
where  a  defendant  verbally  agrees  to  do  two  or  more  things, 
one  of  which  is  without  and  the  others  within  the  Statute  of 
'Frauds,  the  plaintiff  cannot  recover  upon  the  former  engage- 
ment, if  his  declaration  be  framed  upon  the  whole,  as  it 
must  be  where  the  several  engagements  are  in  their  nature 
interdependent,  and  have  not  been  in  fact  severed  by  the 
anterior  execution  of  so  much  as  would  have  been  affected 
by  the  statute.1  By  applying  this  principle  to  the  cases  in 
question,  it  is  perhaps  more  clearly  seen  why  an  oral  varia- 
tion of  a  written  agreement  within  the  Statute  of  Frauds, 
though  made  in  respect  of  a  particular  which  might,  if  stand- 
ing alone,  be  good  by  parol,  cannot  be  available,  so  long  as 
the  whole  contract,  embracing  that  which  is  required  to  be 
in  writing  as  well  as  that  which  is  not,  remains  executory. 

§  421.  If,  however,  the  case  should  arise  of  an  action  to 
recover  upon  that  part  only  which  had  been  so  varied  by 
parol,  the  other  part  having  been  severed  therefrom  by  being 
performed  (as  if,  in  Harvey  v.  Crabham,  the  lease  had  been 
executed,  and  the  plaintiff  had  sued  only  for  the  valuation 
of  the  straw,  etc.,  according  to  the  substituted  oral  agree- 
ment), it  is  held,  by  analogy  with  the  principle  just  referred 
to,  that  the  action  may  be  sustained.  For  when  the  part  in 
respect  of  which  the  oral  variation  is  made,  has  ceased  to  be 
a  part  of  a  contract  required  by  the  statute  to  be  in  writing, 
the  statute  loses  its  hold  upon  the  case,  and  the  rule  of  com- 
mon law  intervenes,  allowing  a  contract  reduced  to  writing 
to  be  afterward  varied  by  parol.2 

§  422.  The  general  rule  which  has  thus  far  occupied  our 
attention,  finds  perhaps  its  most  appropriate  illustration  in 
a  suit  in  equity  for  the  ipurpose  of  enforcing  a  written  con- 
tract with  a  subsequent  oral  variation  ingrafted  upon  it. 
Such  a  case  has  arisen  in  England,  and  Lord  Chancellor 
Truro  held  the  rule  to  be  entirely  applicable,  in  the  absence 

1  Ante,  Chapter  IX. 

a  Negley  v.  Jeffers,  28  Ohio.  St.  90. 


550  STATUTE   OF   FRAUDS.  [CH.    XVIII. 

of  any  suggestion  of  fraud ;  and  he  referred  also  to  the  several 
cases  we  have  reviewed,  as  clearly  establishing  it  at  law, 
and  stated  the  case  of  Cuff  v.  Penn  to  have  been  overruled.1 

§  423.  But  the  further  question  remains,  in  what  manner 
may  such  an  oral  variation  be  made  available  to  the  parties, 
otherwise  than  by  a  direct  proceeding  to  enforce  the  contract 
as  varied  ?  To  this  the  correct  answer  seems  to  be  that 
performance,  according  to  the  orally  substituted  terms,  is 
available  to  either  party  in  like  manner  as  would  have  been 
performance,  according  to  the  original  contract.  This  is 
manifestly  not  to  enforce  an  oral  agreement  within  the 
Statute  of  Frauds,  even  by  way  of  defence ;  the  oral  stipula- 
tion is  relied  upon  simply  by  way  of  accord  and  satisfaction ; 
it  is  relied  upon  for  the  purpose  of  proving  performance 
alone,  which  is  thus,  so  to  speak,  dissociated  from  the  con- 
tract itself.  And  in  this  sense  and  for  this  purpose,  there  is 
no  difficulty  in  accepting  the  distinction  asserted  between  the 
contract,  which  is  within  the  purview  of  the  statute,  and  the 
performance,  which  is  not. 

§  424.  Thus,  where  the  plaintiff  has  brought  his  action 
upon  the  original  contract  (as  he  must  do),  alleging  non-per- 
formance by  the  defendant,  the  latter  may  answer  that  he 
has  performed  according  to  an  oral  agreement  for  a  substi- 
tuted performance,  or,  being  ready  to  do  so,  was  prevented 
by  the  fault  of  the  plaintiff  himself.2  It  is  not  competent  to 
him  to  set  up  the  oral  agreement  in  bar  of  the  plaintiff's 
claim,  not  alleging  his  own  performance  or  readiness  to 
perform. 

§  425.  Again,  the  action  having  been  brought  upon  the 
original  contract,  if  the  defendant  set  up  that  the  plaintiff 
did  not  himself  perform  according  to  its  terms,  the  plaintiff 
may  reply  that  he  was  ready  to  do  so,  but  that  it  was  dis- 

1  Emmet «».  Dewhurst,  3  McN.  &  G.  587. 

2  Cummings  v.   Arnold,  3  Met.  (Mass.)  486;  Neil  v.  Cheves,  1  Bail. 
(S.  C.)  Law,  537;  Lerned  v.  Wanuemacher,  9  Allen  (Mass.)  412;  Whit 
tier  P.  Dana,  10  Allen  (Mass.)  326. 


CH.   XVIII.]  THE   CONTEJJTS   OF   THE   MEMORANDUM.  551 

pensed  with  by  the  defendant  assenting  to  a  substituted  per- 
formance ;  and  his  proof  of  such  assent  is  not  considered  a 
variance  from  his  declaration.1 

§  426.  The  question  of  the  extent  of  the  validity  of  these 
oral  stipulations  subsequently  made,  has  been  discussed  at 
length  in  the  Court  of  Common  Pleas  in  the  case  of  Hickman 
v.  Haynes,  the  previous  decisions  commented  upon,  and  the 
general  principle  reaffirmed  "that  neither  a  plaintiff  nor  a 
defendant  can  at  law  avail  himself  of  a  parol  agreement  to 
vary  or  enlarge  the  time  for  performing  a  contract  previously 
entered  into  in  writing,  and  required  so  to  be  by  the  Statute 
of  Frauds."  In  the  case  before  the  court,  the  plaintiff,  to 
accommodate  the  defendants,  had  postponed  the  delivery  of 
certain  goods  which  he  had  agreed  to  sell.  The  defendants, 
having  refused  to  accept  them  even  after  the  postponement, 
sought  to  rely  upon  the  fact  of  the  oral  extension  as  having 
invalidated  the  contract.  The  court  held,  however,  that 
although  the  plaintiff  assented  to  the  defendant's  request  not 
to  make  the  delivery  at  the  contract  time,  he  must  be  taken 
to  have  been  ready  to  deliver  then,  and  that  the  defendants 
were  estopped  from  averring  the  contrary.2 

§  426  a.  This  case  was  followed  the  next  year  by  the  case 
of  Plevins  v.  Downing.  In  that  case  the  plaintiff,  whose 
original  contract  bound  him  to  deliver  the  goods  in  July, 
sought  to  recover  for  the  refusal  of  the  defendant  to  receive 
them  in  the  following  October.  The  plaintiff  had  failed  in 
his  July  delivery,  and  relied  upon  a  verbal  request  by  the 
defendant  made  in  October,  to  deliver.  With  regard  to  this, 
the  court,  while  approving  Hickman  v.  Haynes,  pointed  out 
the  distinction  between  that  case  and  the  one  before  them, 

1  Stearns  t».  Hall,  9  Cush.  (Mass.)  31 ;  Swain  p.  Seamens,  9  Wall. 
(U.  S.)  254;  Leather  Cloth  Co.  v.  Heironimus,  L.  R.  10  Q.  B.  140;  Long 
r.  Hartwell,  34  N.  J.  L.  116. 

2  Hickman  v.  Haynes,  L.  R.  10  C.  P.  598,  605.    The  plaintiff  was  also 
allowed  to  recover  damages  assessed  according  to  the  market  price  at  the 
later  or  postponed  date.     See  Ogle  v.  Lord  Vane,  L.  R.  3  Q.  B.  272; 
Smith  r.  Loomis,  74  Me.  503. 


552  STATUTE  OF  FRAUDS.          [CH.  XVIIL 

and  they  held  that  the  plaintiff,  being  unable  to  show  readi- 
ness and  willingness  to  deliver  in  July,  and  being  "  logically 
driven  to  rely  upon  the  subsequent  request  of  the  defendant, 
either  as  a  proposed  alteration  of  a  term  of  the  original  con- 
tract, or  as  a  request  upon  which  to  hang  a  new  contract  to 
accept,"  could  not  recover.1 

§  427.  There  remains  to  be  discussed  under  this  head  only 
one  case,  Stowell  v.  Robinson,  decided  in  the  Common  Pleas 
in  1836.  The  plaintiff  declared  upon  a  written  agreement 
by  which  the  defendant  engaged  to  assign  to  him  a  lease, 
possession  to  be  given  by  a  certain  day,  and  that  he  had 
good  right  to  assign;  breach,  that  he  had  not  such  right, 
and  could  not  perform  his  engagement;  and  a  count  was 
added  for  money  had  and  received  to  recover  back  .£50  which 
the  plaintiff  had  advanced  as  deposit,  on  the  ground  that  the 
defendant  had  not  completed  the  conveyance  and  given  pos- 
session on  the  day  agreed.  The  defendant  pleaded  that  he 
-fyad  good  right  to  assign;  that  neither  he  nor  the  plaintiff 
was  ready  on  the  day  named  for  delivering  possession ;  that 
it  was  orally  agreed  to  postpone  it  a  reasonable  time  if  the 
defendant  would  make  out  title  meanwhile ;  that  he  did  so 
make  out  title,  but  the  plaintiff  then  refused  to  perform.  A 
verdict  having  been  obtained  for  the  defendant,  the  court 
said  they  would  not  disturb  it  upon  the  special  count,  as  it 
was  not  considered  sufficiently  proved ;  but  in  view  of  the 
count  for  the  deposit  they  set  the  verdict  aside,  the  defend- 
ant not  having  assigned  on  the  day  originally  agreed.  Chief 
Justice  Tindal,  who  delivered  judgment,  said  that  the  ques- 
tion was  whether  the  day  for  the  completion  of  the  purchase 
of  an  interest  in  land,  inserted  in  a  written  contract,  could 
be  varied  by  a  parol  agreement,  and  another  day  substituted 
so  as  to  bind  the  parties  ;  and  that  the  court  were  of  opinion 
it  could  not.  And,  although  admitting  that  upon  the  case 
shown,  neither  party  was  ready  on  the  day  first  agreed,  he 
says  that  to  allow  the  oral  variation  would  be  "  virtually  and 

1  Plevins  v.  Downing,  1  C.  P.  D.  220. 


CH.    XVIII  ]          THE   CONTEXTS   OF   THE   MEMORANDUM.  553 

substantially  to  allow  an  action  to  be  brought  on  an  agree- 
ment relating  to  the  sale  of  land,  partly  in  writing,  and 
signed  by  the  parties,  and  partly  not  in  writing  but  by  parol 
only,  and  amounts  to  a  contravention  of  the  Statute  of 
Frauds. " 1 

§  428.  From  the  report  of  this  case,  it  nowhere  appears 
that  the  distinction  between  relying  upon  the  oral  variation 
"so  as  to  bind  the  parties,"  and  relying  upon  readiness  to 
perform  according  to  its  tenor  as  a  defence  in  the  nature  of 
accord  and  satisfaction,  was  brought  to  the  notice  of  the 
court;  nor  is  there,  in  the  decision  itself,  any  allusion  to  the 
English  cases  antecedent  to  Cuff  v.  Penn,  where  this  distinc- 
tion appears  to  be  recognized.  It  is  to  be  remarked,  also, 
that  in  neither  Stead  v.  Dawber  nor  Marshall  v.  Lynn,  both 
decided  subsequently  to  Stowell  v.  Robinson,  and  both  assert- 
ing the  rule  that  an  action  could  not  be  maintained  upon  an 
agreement,  embraced  by  the  Statute  of  Frauds,  partly  in 
writing  and  partly  resting  in  parol,  do  the  judges  quote  that 
case  as  an  authority.2  These  circumstances  may  incline  us 
to  doubt  whether  it  can  be  so  regarded.  The  Supreme  Court 
of  Massachusetts,  in  their  careful  and  discriminating  judg- 
ment in  Cummings  v.  Arnold,  say:  "It  appears  to  us,  that 
the  case  of  Stowell  v.  Robinson  was  decided  on  a  mistaken 
construction  and  application  of  the  Statute  of  Frauds;  and 
that  the  distinction  between  the  contract  of  sale,  which  is 
required  to  be  in  writing,  and  its  subsequent  performance, 
as  to  which  the  statute  is  silent,  was  overlooked,  or  not  suffi- 
ciently considered  by  the  court;  otherwise,  the  decision 
perhaps  might  have  been  different."8 

§  429.  The  only  question  that  remains  is,  how  far  parol 
evidence  is  admissible  to  prove  the  waiver  or  discharge  of  a 

1  Stowell  v.  Robinson,  3  Ring.  N.  R.  937. 

8  In  Home  v.  Wingfield,  3  Scott  N.  R.  340,  Mr.  Justice  Coltman  refers 
to  it  as  seeming  to  oppose  an  obstacle  to  a  parol  waiver  of  a  promise  to 
deliver  an  abstract  of  title,  —  a  case  which,  it  is  said,  might  be  raised  by 
an  amendment  of  that  actually  before  the  court. 

8  Cummiugs  v.  Arnold,  3  Met.  494. 


554  STATUTE   OF  FRAUDS.  [CH.   XVIII. 

contract  once  put  in  writing  in  obedience  to  the  require- 
ments of  the  Statute  of  Frauds. 

§  430.  Mr.  Chancellor  Kent  remarks,  that  in  certain  cases, 
and  on  certain  terms,  an  agreement  in  writing  concerning 
lands  (and  the  reason  of  the  remark,  doubtless,  applies  to  all 
other  classes  of  contracts  within  the  statute)  may  be  dis- 
charged by  parol;  but  that  the  evidence  in  such  cases  is  good 
only  as  a  defence  to  a  bill  for  specific  performance,  and  is 
totally  inadmissible,  at  law  or  in  equity,  as  a  ground  to  com- 
pel a  performance  in  specie. ]  Passing  by,  for  the  present,  the 
question  whether  such  parol  evidence  may  be  introduced  in 
equity  only,  in  defence  it  may  be  remarked  that  the  precise 
meaning  of  the  learned  Chancellor  seems  to  be  that  it  is 
inadmissible,  either  in  equity  to  compel  a  performance  in 
specie,  or  at  law  to  support  a  claim  for  damages.  And  such 
seems  to  be  clearly  the  correct  opinion.  Lord  Hardwicke 
has  observed  that  an  agreement  to  waive  a  purchase  contract 
was  as  much  an  agreement  concerning  lands  as  the  original 
contract.2  We  have  seen  that  a  contract  by  one  who  holds 
an  agreement  for  the  sale  of  lands  to  him,  to  dispose  of  his 
rights  to  a  third  party,  is  to  be  treated  as  itself  a  contract 
for  the  sale  of  an  interest  in  land;3  and  it  is  substantially 
the  same  thing  if  he  release  that  right  to  him  who  executed 
the  agreement  to  sell,  or,  in  other  words,  waive  and  dis- 
charge the  agreement  by  parol. 

§  431.  The  question  how  far  the  parol  waiver  in  such  cases 
may  be  set  up  presents  more  difficulty,  and  may  be  consid- 
ered in  two  views,  as  it  may  arise  in  equity  or  in  law. 

§  432.  In  Gorman  v.  Salisbury,  an  early  case  before  Lord 
Keeper  North,  where  a  bill  was  brought  for  a  specific  execu- 
tion of  a  written  contract,  it  was  held  that  a  parol  discharge 
was  binding,  and  the  bill  was  dismissed.4  Afterwards,  when 

1  Stevens  v.  Cooper,  1  Johns.  (N.  Y.)  Ch.  425. 

3  2  Eq.  Cas.  Abr.  33 ;  Bell  v.  Howard,  9  Mod.  302.     See  Arlington  v. 
Porter,  47  Ala.  714. 

8  Ante,  §  229. 

4  Gorman  v.  Salisbury,  1  Vern.  240. 


CH.  XVIII.]  THE   CONTENTS   OF   THE   MEMORANDUM.  555 

this  case  was  cited  upon  a  similar  one  before  Lord  Hard- 
wicke,  he  declared  that  he  would  not  say  that  a  contract  in 
writing  could  not  be  waived  by  parol,  yet  he  should  expect 
in  such  a  case  very  clear  proof,  and,  the  defendant  before 
him  not  furnishing  such  proof,  the  plaintiff  had  a  decree.1 
In  another  case  he  said  it  was  certain  that  an  interest  in 
land  could  not  be  parted  with  or  waived  by  naked  parol  with- 
out writing;  yet  articles  might  by  parol  be  so  far  waived 
that  if  the  party  came  into  equity  for  a  specific  execution, 
such  parol  waiver  would  rebut  the  equity  which  the  party 
before  had,  and  prevent  the  court  from  executing  them 
specifically.2 

§  433.  And  this  opinion,  that  a  parol  discharge  of  a  writ- 
ten contract  within  the  Statute  of  Frauds  is  available  in 
equity  to  repel  a  claim  upon  that  contract,  to  which  the 
mind  of  Lord  Hardwicke  came  so  reluctantly,  is  since  firmly 
established  by  many  authorities.3  But  it  has  been  laid  down 
by  Lord  Lyndhurst  that,  although  such  waiver  is  unquestion- 
ably admissible  according  to  the  rule  stated,  it  must  be  in 
effect  a  total  dissolution  of  the  contract,  such  as  would  place 
the  parties  in  their  original  situation.4 

§  434.  The  question  of  the  admissibility  of  such  a  parol 
waiver  as  a  defence  to  an  action  at  law  was  raised,  and,  it 
would  seem,  for  the  first  time,  in  the  case  of  Goss  v.  Lord 
Nugent,  in  the  Queen's  Bench,  where  the  court  remarked 
that  the  statute  did  not  say  that  all  contracts  concerning  the 
sale  of  lands  should  be  in  writing,  but  only  that  no  action 
should  be  brought  unless  they  were  in  writing;  and  that  as 
there  was  no  clause  in  the  act  which  required  the  dissolution 
of  such  contracts  to  be  in  writing,  it  should  rather  seem  that 
a  written  contract  concerning  the  sale  of  lands  might  still 

1  Backhouse  ».  Crosby,  2  Eq.  Cas.  Abr.  32,  PL  44. 

2  Bell  v.  Howard,  9  Mod.  H02. 

»  Sugden,  Vend.  &  P.  173 ;  Roberts  on  Frauds,  89 ;  Phelps  v.  Seely, 
22  Grat  (Va.)  573;  Marsh  v.  Bellew,  45  Wise.  36;  Jones  v.  Booth,  38 
Ohio  St.  405  ;  Miller  v.  Pierce,  104  N.  C.  389. 

4  Robinson  v.  Page.  3  Russ.  119. 


556  STATUTE  OF  FRAUDS.          [CH.  XVIIL 

be  waived  and  abandoned  by  a  new  agreement  not  in  writ- 
ing, and  so  as  to  prevent  either  party  from  recovering  in  an 
action  on  the  contract  which  was  in  writing. 1 

§  435.  As  thus  stated,  the  admission  of  the  parol  waiver 
is  apparently  put  upon  the  ground  that  it  is  only  used  for 
defence.  But  in  an  earlier  part  of  this  work,  it  was  shown 
that  to  defend  upon  a  verbal  contract  within  the  Statute  of 
Frauds  was  as  much  in  opposition  to  its  spirit  as  to  prose- 
cute a  claim  upon  it.2  This  reason  is  forcibly  urged  by  Sir 
Edward  Sugden  against  admitting  parol  evidence  of  waiver 
in  such  cases.  And  he  gives  it  as  his  opinion,  upon  a  review 
of  the  cases,3  that  "perhaps  the  better  opinion  is  that  it  is 
inadmissible  at  law."4  On  the  other  hand,  Mr.  Phillips 
says  that  it  seems  to  be  generally  understood  that  such  parol 
evidence  is  admissible;5  and  Mr.  Greenleaf  considers  that 
there  is  little  doubt  of  its  admissibility.6 

§  436.  It  must  be  observed  that  those  writers  who  stand 
opposed  to  Sir  Edward  Sugden  upon  this  question,  rest  their 
opinions  chiefly  upon  the  somewhat  unsatisfactory  language 
used  by  the  court  in  Goss  v.  Lord  Nugent.  If  they  are  to  be 
sustained,  it  would  seem  that  it  must  rather  be  upon  the 
ground,  upon  which  a  parol  waiver  even  of  an  instrument 
under  seal  has  been  admitted  in  evidence,  that  he  who  pre- 
vents a  thing  being  done  shall  not  avail  himself  of  the  non- 
performance  he  has  occasioned.7 

1  Goss  v.  Lord  Nugent,  5  Barn.  &  Ad.  67. 

2  Ante,  §§  131  et  seq.  8  Sugden,  Vend.  &  P.  171,  172. 

4  Sugden,  Vend.  &  P.  173,  174.     See  also  Noble  v.  Ward,  L.  R.  1 
Exch.  117.     Affirmed  in  the  Exchequer  Chamber,  L.  R.  2  Exch.  135. 
6  2  Phillips  363  (Cowen  &  Hill's  ed.  1849). 

6  1  Greenl.  Ev.  §  302,     See  also  Phil.  &  Am.  Ev.  776 ;  Lawrence  v.  Dole, 
11  Vt.  549 ;  Raffensberger  v.  Cullison,  28  Pa.  St.  426 ;  Boyce  v.  McCullough, 
3  Watts  &  S.  (Penn.)  429;  Morse  v.  Copeland,  2  Gray  (Mass.)  302. 

7  Fleming  ».  Gilbert,   3  Johns.  (N.  Y.)  528.     See  Canal  Co.  v.  Ray, 
101  U.  S.  522.     In  Cummings  v.  Arnold,  3  Met.  494,  the  Supreme  Court 
of  Massachusetts  assert,  and  apparently  upon  the  view  suggested  in  the 
text,  that  to  an  action  upon  a  written  contract  within   the  Statute  of 
Frauds  a  plea  that  it  had  been  totally  dissolved  before  breach,  by  an 
oral  agreement,  would  be  a  good  and  sufficient  bar. 


CH.  XIX.]        VERBAL  CONTRACTS   ENFORCED   IN   EQUITY.  557 


CHAPTER  XIX. 

VERBAL  CONTRACTS  ENFORCED  IN  EQUITY. 

§  437.  WE  now  come  to  consider  the  doctrines  which 
courts  of  equity  maintain  and  apply  in  cases  where  verbal 
contracts,  such  as  the  Statute  of  Frauds  has  required  to  be 
put  in  writing,  come  before  them.  These  courts,  as  has  been 
many  times  affirmed  by  the  wisest  and  most  learned  of  their 
judges,  are  as  much  bound  by  the  express  provisions  of  the 
statute  as  courts  of  law.  They  cannot  in  general  specifically 
enforce  contracts  embraced  by  them,  any  more  than  courts 
of  law  can  give  damages  for  their  non-performance.  But 
they  have  always  been  clothed  with  the  salutary  power  of 
preventing  fraud,  or  affording  positive  relief  against  its  con- 
sequences ;  and  this  power  they  have  not  hesitated  to  exercise 
by  compelling  the  specific  execution  of  a  verbal  contract  to 
which  the  provisions  of  the  Statute  of  Frauds  apply,  where 
the  refusal  to  execute  it  would  amount  to  practising  a  fraud. 
In  so  doing  they  disclaim  the  power  of  ingrafting  exceptions 
upon  the  statute,  but  proceed  upon  the  ground  that  to  pre- 
vent fraud  is  their  supreme  duty  as  courts  of  equity  and 
conscience. 

§  438.  It  is,  indeed,  often  said  that  as  the  statute  itself 
was  intended  for  the  suppression  of  frauds,  it  is  but  subserv- 
ing more  effectually  the  ends  of  its  enactment  for  courts  of 
equity  to  interpose,  and  prevent  it  from  being  made,  by  the 
liberty  which  it  affords  a  party  of  protecting  himself  under 
its  cover,  the  very  engine  and  instrument  of  fraud.  To  this 
view  it  might  be  replied,  however,  that  the  fraud  which  the 
statute  was  intended  to  suppress  consists  in  the  assertion  of 
a  contract  which  was  never  made,  whereas  the  fraud  against 


558  STATUTE   OF  FRAUDS.  [CH.   XIX. 

which  courts  of  equity,  in  the  cases  we  have  to  consider, 
afford  relief,  consists  in  the  repudiation  of  a  contract  which 
has  been  made,  and  upon  which  an  innocent  party  has  actu- 
ally proceeded  to  do  that  for  which  the  jurisdiction  of  the 
law  courts  affords  him  no  just  recompense.  Again,  it  seems 
to  be  no  less  than  a  contradiction  in  terms  to  say  that  the 
object  of  a  statute  is  promoted  by  rejecting  its  authority. 
The  correct  view  appears  to  be  that  equity  will  at  all  times 
lend  its  aid  to  defeat  a  fraud,  notwithstanding  the  Statute  of 
Frauds ;  and  upon  this  simple  ground  it  is  believed  that  the 
many  decisions  in  equity  which  it  is  now  our  duty  to  examine 
will  be  found  substantially  to  rest. 

§  439.  The  fraud  against  which  equity  will  relieve,  not- 
withstanding the  statute,  is  not  the  mere  moral  wrong  of  re- 
pudiating a  contract  actually  entered  into,  which,  by  reason 
of  the  statute,  a  party  is  not  bound  to  perform  for  want  of  its 
being  in  writing. 1  This  was  early  laid  down  by  Lord  Maccles- 
field,  Chancellor,  in  a  case  arising  upon  a  promise  of  a  de- 
fendant, about  to  marry,  that  his  wife  should  enjoy  all  her  own 
estate,  to  her  separate  use  after  the  marriage,  which  promise, 
as  one  made  "upon  consideration  of  marriage,"  could  not 
regularly  be  enforced.  His  Lordship  declared  that  "in  cases 
of  fraud,  equity  should  relieve,  even  against  the  words  of 
the  statute ;  as  if  one  agreement  in  writing  should  be  pro- 
posed and  drawn,  and  another  fraudulently  and  secretly 
brought  in  and  executed  in  lieu  of  the  former;  in  this  or 
such  like  cases  of  fraud,  equity  would  relieve;  but  where 
there  is  no  fraud,  only  relying  upon  the  honor,  word,  or 
promise  of  the  defendant,  the  statute  making  those  promises 
void,  equity  will  not  interfere."  2 

1  See  §  94,  ante. 

2  Montacute  v.  Maxwell,   1  P.    Wms.   620;   s.    c.   1    Stra.   236,  nom. 
Mountacue  v.   Maxwell;  s.   c.   1  Eq.  Cas.   Abr.    19,   nom.  Maxwell   v. 
Montacute;    s.  c.  Finch.  Free.  Ch.  526,  nom.  Maxwell  ».  Mountacnte, 
Schmidt  v.  Gatewood,  2  Rich.  (S.  C.)  Eq.  162;    Kinard  v.  Hiers.  3  Rich. 
(S.    C.)  Eq.  423  ;    Whitridge   v.  Parkhurst,   20   Md.  62  ;    McClain   v. 
McClain,  57  Iowa,  167;  Caylor  v  Roe,  99  Ind.  1;  Jackson  v.  Myers,  120 


CH.   XIX.]       VERBAL   CONTRACTS    ENFORCED   IN   EQUITY.  559 

§  440.  This  distinction  commends  itself  at  once  as  one 
which  must  be  regarded,  or  courts  of  equity  be  deemed  not 
at  all  bound  by  the  Statute  of  Frauds.  Mr.  Justice  Story 
has,  indeed,  dissented  from  it  in  the  following  strong  lan- 
guage :  "  I  doubt  the  whole  foundation  of  the  doctrine,  as  not 
distinguishable  from  other  cases,  which  courts  of  equity  are 
accustomed  to  extract  from  the  grasp  of  the  Statute  of 
Frauds. " l  This  doubt  does  not  appear  to  have  been  asserted 
in  his  Commentaries,  and,  as  he  says  himself,  it  was  unne- 
cessary to  act  upon  it  in  the  case  before  him ;  and,  although 
there  are  in  some  late  cases2  expressions  from  which  the 
question  seems  to  be  considered  in  some  degree  an  open  one, 
at  least  where  the  contract  is  one  of  marriage  settlement, 
no  decision  has  ever  passed  in  opposition  to  the  ancient 
doctrine. 

§  441.  A  simple  illustration  of  the  rule  that  when  the 
Statute  of  Frauds  has  been  used  as  a  cover  to  a  fraud,  equity 
will  relieve  against  the  fraud,  notwithstanding  its  provi- 
sions, is  found  in  a  case  reported  by  Viner,  and  stated  by  him 
to  have  occurred  in  Lord  Nottingham's  time,  and  to  have 
been  the  first  instance  in  which  any  equitable  exception  to 
the  statute  appears.  There  was  a  verbal  agreement  for  an 
absolute  conveyance  of  land,  and  for  a  defeasance  to  be  exe- 
cuted by  the  grantee;  but  he,  having  obtained  the  convey- 
ance, refused  to  execute  the  defeasance  and  relied  upon  the 
statute;  but  his  plea  was  overruled,  and  he  was  compelled 
to  execute  according  to  his  agreement.8  Here  the  attempted 

Tnd.  504 ;  Dunphy  v.  Ryan.  116  U.  S.  491 ;  Patton  v.  Beecher,  62  Ala. 
579 ;  Crahill  v.  Marsh,  38  Ohio  St.  331. 

1  Tn  Jenkins  r.  Eldredge,  6  Story,  292,  quoted  ante,  §  112,  note. 

8  In  De  Biel  »'.  Thompson,  3  Beav.  469.  Lord  Langdale,  M.  R.,  passed 
it  by  as  a  question  which  it  was  unnecessary  to  decide  ;  and  in  Surcome  v. 
Pinniger,  3  De  G..  M.  &  G.  571,  Lord  Justice  Knight  Bruce  said  that  it 
was  probably  true  that  marriage  only  would  not  suffice 

•  5  Vin.  Ah.  523.  And  see  Sir  George  Maxwell's  case,  cited  in  Whit- 
bread  v.  Brockhurst.  1  Bro.  C.  C.  409  ;  Crocker  v.  Higgins,  7  Conn.  342 ; 
Teague  v.  Fowler,  56  Ind.  569  ;  Langford  v.  Freeman,  60  Ind.  46.  So  in 
Walker  v.  Walker,  2  Atk.  99,  where  Lord  Hardwicke  says:  "Suppose  a 


560  STATUTE   OF   FRAUDS.  [CH.   XIX. 

fraud  consisted  not  merely  in  refusing  to  do  what  he  agreed, 
but  in  deceiving  the  plaintiff  out  of  his  property.  And  the 
case  is  analogous  to  that  put  by  Lord  Macclesfield,  as  falling 
within  the  rule,  where  one  agreement  in  writing  is  proposed 
and  drawn,  and  another  fraudulently  and  secretly  brought  in 
and  executed  in  lieu  of  the  former. 

§  441  a.  This  doctrine,  that  courts  of  equity  have  power 
to  declare  a  deed,  absolute  on  its  face,  to  be  a  mortgage, 
upon  parol  proof  that  the  conveyance  was  in  reality  only  a 
security  for  the  payment  of  a  debt  of  the  grantor  to  the 
grantee,  has  been  discussed  by  the  Supreme  Court  of  Mass- 
achusetts, with  especial  reference  to  the  application  of  the 
Statute  of  Frauds.  The  case  was  that  of  Campbell  v. 
Dearborn,1  and  presented  the  following  state  of  facts.  The 
plaintiff  had  a  written  contract  from  one  Tirrill  for  the  con- 
veyance of  a  lot  of  land  to  himself  upon  payment  of  a  certain 
sum,  in  pursuance  of  which  Tirrill  executed  the  conveyance 
to  the  plaintiff,  who  paid  the  purchase  price  with  money  lent 
him  by  the  defendant,  and  about  the  same  time  executed  to 
the  defendant  an  absolute  deed  of  the  property.  The  bill 
alleged  that  this  conveyance  to  the  defendant  was  understood 
and  intended  by  the  parties  to  it  to  be  only  a  security  for  the 
money  advanced  to  the  plaintiff  to  enable  him  to  carry  out 
his  purchase  from  Tirrill,  and  prayed  that  the  plaintiff  might 
be  allowed  to  redeem  by  payment  of  the  amount  lent  him  by 
the  defendant,  and  the  latter  be  decreed  thereupon  to  convey 
the  premises  back  to  the  plaintiff.  The  answer  denied  that 
any  loan  was  ever  made,  and  relied  upon  the  Statute  of 
Frauds  as  an  answer  to  any  of  the  alleged  oral  agreements, 

person  who  advances  money  should,  after  he  has  executed  [received]  the 
absolute  conveyance,  refuse  to  execute  the  defeasance,  will  not  this  court 
relieve  against  such  fraud  ?  "  See  also  Arnold  v.  Cord,  16  Ind.  177  ;  Mc- 
Burney  v.  Wellman,  42  Barb.  (N.  Y.)  390,  affirmed  sub  nomine  Dodge  v. 
Wellman,  43  How.  Pr.  427;  Leahey  v.  Leahey,  11  Mo.  App.  413;  Cham- 
bers v.  Butcher,  82  Ind.  508  ;  Union  Insurance  Co.  v.  White,  106  111.  67; 
Armes  v.  Bigelow,  3  Me  Arthur  (D.  of  C.)  442.  See  also  §  95  ante. 
1  Campbell  v.  Dearborn,  109  Mass.  130. 


CH.   XIX.]        VERBAL  CONTRACTS   ENFORCED   IN   EQUITY.  561 

understandings,  or  promises  stated  in  the  bill.  The  case 
was  reported  to  the  full  court,  it  being  found  as  a  fact  that 
the  plaintiff  believed,  with  reason,  that  the  money  had  been 
advanced  as  a  loan  and  that  the  defendant  would,  on  repay- 
ment of  it,  reconvey  the  property.  The  opinion  of  the  court, 
by  Wells,  J.,  after  pointing  out  that  the  plaintiff  was  pre- 
cluded by  his  deed,  and  its  recitals  and  covenants,  from  set- 
ting up  any  trusts  by  implication  against  its  express  terms,1 
and  also  that  the  case  was  not  one  showing  any  breach  of  an 
agreement  to  execute  a  written  defeasance,  but  was  "  a  trans- 
action between  borrower  and  lender,  and  not  a  real  pur- 
chase," proceeds  to  discuss  the  question,  can  equity  relieve 
in  such  a  case  ?  It  says  that  the  parol  evidence  is  admis- 
sible, "  not  to  vary,  add  to,  or  contradict  the  writings,  but  to 
establish  the  fact  of  an  inherent  fault  in  the  transaction  or 
its  consideration,  which  affords  ground  for  avoiding  the  effect 
of  the  writings,  by  restricting  their  operation,  or  defeating 
them  altogether. "  The  evidence  is  admissible  to  show  that 
the  transaction  was  not  in  reality  a  sale,  but  a  pledge ;  and 
when  this  fact  is  clearly  established,2  the  deed,  which  no 
longer  truly  represents  the  nature  of  the  transaction,  will  be 
construed  as  constituting  a  mortgage,  or  defeasible  convey- 
ance. This  doctrine,  say  the  court,  "maybe  adopted  with- 
out violation  of  the  Statute  of  Frauds,  or  of  any  principle  of 
law  or  evidence ;  and,  if  properly  guarded  in  administration, 
may  prove  a  sound  and  salutary  principle  of  equity  juris- 
prudence. It  is  a  power  to  be  exercised  with  the  utmost 
caution,  and  only  when  the  grounds  of  interference  are  fully 
made  out,  so  as  to  be  clear  from  doubt."  This  case,  which 
is  here  noticed  at  length  on  account  of  its  careful  and 
thorough  statement  and  dicussion  of  the  question  involved, 


1  Blodgett  v.  Hildreth,  103  Mass.  484;  Miller  v.  Blackburn,  14  Tnd. 
62;  Moore  v.  Moore,  38  N.  H.  382;  Collins  P.  Tillou,  26  Conn.  368; 
Sturtevant  v.  Sturtevant,  20  N.  Y.  39.  See  Haigh  v.  Kaye,  L.  R.  7  Ch. 
App.  469,  however,  in  limitation  of  this  doctrine. 

3  Lance's  Appeal,  112  Pa.  St.  456. 

36 


562  STATUTE   OF  FRAUDS.  [CH.   XIX. 

is  entirely  in  accordance  with  the  current  of  judicial  opinion 
on  the  point.1 

§  441  b.  It  is  to  be  noticed  that  the  rule,  as  laid  down  in 
Campbell  v.  Dearborn,  does  not  allow  the  enforcement  of  an 
oral  agreement,2  but  merely  allows  it  to  be  proved  when, 
taken  as  a  fact,  and  in  connection  with  the  other  circum- 
stances of  the  case,  it  affords  sufficient  ground  for  a  court  of 
equity  to  reform  the  instrument,  by  construing  it  according 
to  what  has  been  proved  to  be  the  true  character  of  the  trans- 
action, viz.,  a  security  for  the  payment  of  a  debt.  If  this 
does  not  appear,  and  the  oral  agreement  relied  upon  is  with- 
in the  Statute  of  Frauds,  a  court  of  equity  is  as  powerless  as 
a  court  of  law  to  disregard  the  statute,  if  relied  upon  by  a 
defendant  who  is  not  by  his  conduct  equitably  estopped  to 
insist  upon  it.3 

§  441  c.  In  the  case  of  Glass  v.  Hulbert,4  also  in  the 
Supreme  Court  of  Massachusetts,  the  plaintiff  sought,  by  bill 
in  equity,  to  have  the  defendant  decreed,  inter  alia,  to  con- 
vey to  him  certain  land  which  he  alleged  was  included  in  the 
oral  contract  of  sale,  or  represented  by  the  defendant  to  be 

1  See  Pond  v.  Eddy,  113  Mass.  149;  McDonough  v.  Squire,  111  Mass. 
217 ;  Sweetzer's  Appeal,  71  Pa.  St.  264 ;  Danzeisen's  Appeal,  73  Pa.  St. 
65;  Klein  r.  McNamara,  54  Miss.  90;  Odell  v.  Montross,  68  N.  Y.  499; 
Jones  v.  Guaranty  Co.,  101  U.  S.  622.     The  rule  cannot  be  extended  to 
allow  parol  proof  of  an  oral   agreement,  made  after  an  absolute  convey- 
ance, to  turn  it  into  a  mortgage.     This  is  obviously  in  derogation  of  the 
Statute  of  Frauds.      Richardson  v.  Johnsen,  41   Wise.   100;    Armor  v. 
Spalding,  14  Col.  302;  Booth  v.   Hoskins,  75  Cal.  271  ;  Landers  v.  Beck, 
92  Ind.  49;  Alford  v.  Wilson,   26   S.   W.   Rep.   (Ky.)   539;  Bender  ». 
Zimmerman,  26  S.  W.  Rep.    (Mo.)   973.     Nor  -will  it  apply  where  the 
rights  of  third  parties  have  intervened.     Pancake  v.   Cauffman,  114  Pa. 
St.  113. 

2  Compare  Pierce  v.   Colcord,  113  Mass.  372;  Glass  r.  Hulbert,  102 
Mass.  35. 

8  See  Taylor  v.  Sayles,  57  N.  H.  465;  Howland  ».  Blake,  97  U.  S. 
624. 

4  Glass  v.  Hulbert,  102  Mass.  29 ;  compare  Beardsley  v.  Duntley,  69 
N.  Y.  577;  Hitchins  v.  Petting!!!,  58  N.  H.  386;  Macomber  v.  Peckham, 
16  R.  I.  485;  Noel's  Ex'r  v.  Gill,  84  Ky.  241.  See  further  consideration 
of  Glass  v.  Hulbert,  post,  §  444  a. 


CH.    XIX.]        VERBAL   CONTRACTS   ENFORCED    IN    EQUITY.  563 

so  included,  but  omitted  from  the  deed ;  and  to  have  the  deed 
reformed  so  as  to  include  the  land  in  question.  "Such  a 
reformation,"  says  Wells,  J.,  in  delivering  the  opinion  of 
the  court  dismissing  the  bill,  "not  only  requires  a  descrip- 
tion of  the  subject-matter  of  the  sale,  different  from  the 
express  terms  of  the  oral  contract,  but  would  enlarge  the 
effect  and  operation  of  the  deed,  as  a  conveyance.  It  in- 
volves the  transfer  of  the  legal  title  to  land  not  covered  by 
the  deed  already  given.  It  requires  a  new  deed  to  be 
executed  and  delivered  by  the  defendant  to  the  plaintiff. 
Whether  that  deed  shall  embrace  the  entire  subject  of  the 
alleged  contract  of  purchase,  with  a  corrected  description  to 
make  it  conform  to  facts  and  abuttals  as  they  were  repre- 
sented to  be.  or  merely  convey  the  seventeen  acres  omitted 
from  the  deed  already  given,  the  order  for  its  execution  will 
enforce  the  specific  performance  of  a  contract  for  the  sale  of 
lands,  for  which  there  exists  no  memorandum,  note,  or  other 
evidence  in  writing  signed  by  the  party  to  be  charged  there- 
with. As  to  the  seventeen  acres  in  dispute,  the  obligation 
to  convey  them  rests  solely  in  the  oral  contract.  The  defend- 
ant denies  any  contract  which  includes  them.  The  plaintiff 
seeks  to  establish  such  a  contract  by  parol  evidence,  and 
enforce  it."  The  opinion  then  proceeds  to  enumerate  and 
discuss  those  circumstances  which,  when  proved,  operate  as 
an  equitable  estoppel  upon  the  defendant  and  prevent  him 
from  relying  upon  the  statute  when  called  upon  to  perform 
according  to  his  agreement.  This  will  be  taken  up  later1  in 
the  discussion  of  the  foundation  upon  which  such  jurisdic- 
tion in  courts  of  equity  rests. 

§  441  d.  Does  the  power  of  a  court  of  equity  to  correct  a 
deed  so  as  to  make  it  conform  to  the  actual  contract  between 
the  parties,  extend  to  verbal  contracts  included  within  the 
Statute  of  Frauds  ?  According  to  Glass  v.  Hulbert,  it  does 
not.  In  that  case,  the  court  say :  "  When  the  proposed  refor- 
mation of  an  instrument  involves  the  specific  enforcement  of 

1  Post,  §§  448  et  seq. 


564  STATUTE   OF   FRAUDS.  [CH.    XIX. 

an  oral  agreement  within  the  Statute  of  Frauds ;  or  when  the 
term  sought  to  be  added  would  so  modify  the  instrument  as 
to  make  it  operate  to  convey  an  instrument  or  secure  a  right 
which  can  only  be  conveyed  or  secured  through  an  instru- 
ment in  writing,  and  for  which  no  writing  has  ever  existed ; 
the  Statute  of  Frauds  is  a  sufficient  answer  to  such  a  proceed- 
ing; unless  the  plea  of  the  statute  can  be  met  by  some 
ground  of  estoppel  to  deprive  the  party  of  the  right  to  set  up 
that  defence.  The  fact  that  the  omission  or  defect  in  the 
writing,  by  reason  of  which  it  failed  to  convey  the  land  or 
express  the  obligation  which  it  is  sought  to  make  it  convey 
or  express,  was  occasioned  by  mistake,  or  by  deceit  and 
fraud,  will  not  alone  constitute  such  an  estoppel.  There 
must  concur,  also,  some  change  in  the  condition  or  position 
of  the  party  seeking  relief,  by  reason  of  being  induced  to 
enter  upon  the  execution  of  the  agreement,  or  to  do  acts  upon 
the  faith  of  it,  as  if  it  were  executed,  with  the  knowledge 
and  acquiescence  of  the  other  party  either  express  or  implied, 
for  which  he  would  be  left  without  redress  if  the  agreement 
were  to  be  defeated."  These  views  are  enforced  in  an 
opinion  of  extraordinary  ability  and  learning;  but  they  have 
not  commanded  the  assent  of  the  courts.  The  preponder- 
ance of  authority  remains  on  the  side  of  maintaining  the 
jurisdiction  to  reform  contracts  or  conveyances  in  cases  of 
mistake  or  fraud  proved  by  oral  testimony  only,  nowithstand- 
ing  the  Statute  of  Frauds.1 

§  442.  In  an  earlier  chapter,  where  the  subject  of  trusts 
arising  by  implication  of  law  was  considered,  we  saw  that 
in  cases  where  an  executor  or  devisee  prevented  a  testator 
from  making  express  provision  for  a  third  party,  by  assur- 
ances that  his  intentions  should  be  carried  out,  equity  would 
enforce  such  promise  against  them,  as  a  trust  in  favor  of  a 
third  party,  arising  out  of  the  fraud  so  practised.2  The  same 

1  A  very  full  correction  of  the  authorities  is  to  he  found  in  the  opinion 
of  Sage.  ,T.,  in  McDonald  v.  Yonngblutter,  46  Fed.  Rep.  836.     And  see 
post,  444  a,  and  cases  cited;  also  Murray  r.  Parker,  19  Beavan  308. 

2  Ante,  §  94.     Compare  Thomson  v.  White,  1  Dall.  (Pa.)  424. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  565 

doctrine  seems  to  apply  in  cases  of  contracts  made  directly 
between  the  parties.  Where  one  who  had  agreed  to  give  the 
plaintiff  a  lease  of  certain  lands,  upon  which,  in  consequence 
of  the  agreement,  the  plaintiff  had  entered  and  made  valu- 
able improvements,  was  desirous  and  anxious,  when  near  his 
death,  to  fulfil  his  promise,  but  was  prevented  by  the  fraudu- 
lent contrivance  of  his  relatives  from  seeing  the  plaintiff  for 
that  purpose,  and  died  without  executing  the  lease,  the  rela- 
tives who  succeeded  to  the  estate  were  afterward  compelled 
in  equity  to  execute  it  themselves.1 

§  443.  Thus,  in  Cookes  v.  Mascall,  a  marriage  was  about 
to  be  celebrated  between  the  plaintiff  and  the  defendant's 
daughter,  and  the  solicitor  on  behalf  of  the  plaintiff  was  in 
the  course  of  preparing  articles  of  settlement;  and  in  the 
meanwhile  a  disagreement  arose  as  to  the  articles,  but  the 
plaintiff  was  still  allowed  to  come  to  the  defendant's  house, 
and  afterward  married  his  daughter,  the  defendant  being 
privy  to  it,  helping  to  set  them  forward  in  the  morning,  and 
entertaining  them,  and  seeming  well  pleased  with  the  mar- 
riage upon  their  return  to  his  house  at  night ;  he  was  decreed 
to  execute  the  agreement  according  to  what  had  been  drawn 
up  by  the  solicitor,  though  it  had  not  received  his  signature.2 
This  case  has  been  considered  hard  to  be  reconciled  with 
another  decided  by  the  same  judges  at  the  same  term,  where 
an  uncle,  by  letter,  promised  his  niece  a  certain  portion,  but 
in  the  same  letter  dissuaded  her  from  marrying  the  plaintiff; 
and  they  refused  to  decree  the  execution,  but  left  the  plain- 
tiff to  his  action  at  law.3  But  there  seems  to  be  no  sugges- 
tion, in  the  latter  case,  of  fraud  or  artifice  on  the  part  of  the 

1  Lester  v.  Foxcroft,  Colles,  P.  C  108;  cited  2  Vern.  456  ;  Gilb  4,  11 ; 
Free.  Ch.  519,  5'_>6;  Story,  Eq.  Jur.  §  768.  See  also  Chamberlaine  v. 
Chatnberlaine,  Freem.  Ch.  34;  Chambe'lain  v.  Agar,  2  Ves.  &  B.  259; 
Mestaer  v.  Gillespie,  11  Ves.  821;  Stickland  v.  Aldridge,  9  Ves.  516: 
Dixon  r.  Olmius,  1  Cox,  414;  Reech  v.  Kennegal,  1  Ves.  Sr.  123;  Sellack 
v.  Harris.  5  Vin.  Ab.  521. 

8  Cookes  v.  Mascall,  2  Vern.  200.  And  see  Bawdes  v.  Amhurst,  Finch, 
Free.  Ch.  402. 

8  Douglas  v.  Vincent,  2  Vern.  202. 


566  STATUTE    OF   FRAUDS.  [CH.    XIX. 

uncle ;  whereas  in  Cookes  v.  Mascall  the  presence  of  such 
fraud  and  artifice  was  manifestly  the  ground  upon  which  the 
court  proceeded. 

§  444.  Again,  in  Montacute  v.  Maxwell,  as  appears  from 
one  of  the  reports  of  that  case,1  the  defendant,  having  given 
instructions  to  have  a  marriage  settlement  drawn,  privately 
revoked  those  instructions,  and  persuaded  the  plaintiff  to 
marry  him ;  and  he  was  decreed  to  execute  the  settlement, 
the  Lord  Chancellor,  as  stated  in  still  another  report  of  the 
case,2  asserting  the  rule  to  be,  that  if  the  parties  rely  wholly 
upon  the  parol  agreement,  neither  party  can  compel  the 
other  to  the  specific  performance,  for  the  Statute  of  Frauds 
is  directly  in  their  way;  but  that  if  there  is  any  agreement 
for  reducing  the  same  to  writing,  and  that  is  prevented  by 
the  fraud  and  practice  of  the  other  party,  the  court  would  in 
such  case  give  relief;  as  where  instructions  are  given  and 
preparations  made  for  the  drawing  of  a  marriage  settlement, 
and  before  the  completion  thereof  the  woman  is  drawn  in, 
by  the  assurances  and  promises  of  the  man  to  perform  it,  to 
marry  without  a  settlement. 

§  444  a.  In  Glass  v.  Hulbert,  the  Supreme  Court  of  Mas- 
sachusetts, by  Wells,  J.,  said  that  it  makes  no  difference 
whether  the  want  of  a  writing  was  accidental  or  intentional, 
and  that  so  long  as  the  effect  of  the  fraud  or  mistake  extends 
no  further  than  to  prevent  the  execution,  or  withhold  from 
the  other  party  written  evidence  of  the  agreement,  it  does 
not  furnish  ground  for  the  court  to  disregard  the  statute,  and 
enter  into  the  investigation  of  the  oral  agreement  for  the 
p.irpose  of  enforcing  it.3  In  this  particular  the  decision  has 

1  1  Eq.  Cas.  Abr.   19.     In  the  report  in  1  P.  Wms.   620,    the  Lord 
Chancellor  is  represented  as  saying  that  the  instructions  to  the  counsel  to 
prepare  the  writing  were  immaterial,  since  the  party  might  still  rpfuse  to 
s  gn  after  the  writing  was  prepared.     And  see  Glass  i>.  Hulbert,  102  Mass. 
30,  38;    Equitable  Gas  Light  Co.  v.  Baltimore  Coal  Tar  &  Mfg.  Co.,  63 
Md.  285. 

2  Finch,  Free.  Ch.  528. 

8  Glass  v.  Hulbert,  102  Mass.  30. 


CH.   XIX.]        VERBAL  CONTRACTS   ENFORCED   IN   EQUITY.  567 

been  criticised  and  perhaps  with  justice.  The  facts  in  that 
case  were  that  the  defendant,  in  the  negotiations  for  the  sale 
of  the  property,  represented  to  the  plaintiff  that  the  boundary 
line  of  an  adjoining  estate  ran  to  a  certain  indicated  point, 
and  if  it  did,  a  deed  describing  the  land  sold  as  bounded  by 
that  line  would  include  the  seventeen  acres  which  the  bill 
sought  to  have  the  deed  aforesaid  to  include.  As  matter  of 
fact  the  boundary  line  in  question  did  not  extend  to  the  point 
indicated,  and  accordingly  the  deed,  which  described  the 
land  sold  as  bounded  by  that  line  (and  it  was  agreed  that 
the  deed  should  be  so  drawn),  failed  to  cover  the  seventeen 
acres.  The  question  is  whether  the  defendant's  misrepre- 
sentation of  fact,  which  induced  the  plaintiff  to  take  the 
deed  drawn  in  those  terms,  was  not  to  be  regarded  as  a  fraud 
against  which  equity  would  relieve  by  decreeing  a  convey- 
ance of  the  seventeen  acres  ?  On  closely  similar  facts  the 
Court  of  Appeals  of  New  York  has  so  held,  expressly  refus- 
ing to  follow  Glass  v.  Hulbert.  The  opinion  says:  "A  party 
unfamiliar  with  the  precise  boundaries  of  a  farm  of  land 
might  not  discover  the  omission  of  an  inconsiderable  portion 
of  the  same  from  a  mere  inspection  of  the  papers.  More 
especially  might  this  be  the  case  where  such  party  had 
reason  to  believe  that  it  was  intended  to  include  such  portion 
in  the  conveyance.  There  is  certainly  strong  ground  for 
claiming  that  the  plaintiff  was  deceived  in  regard  to  the 
description  of  the  premises  by  the  statements  of  the  defend- 
ant."1 

§  445.  Where  the  defendant,  on  a  treaty  of  marriage  with 
his  daughter,  signed  a  writing  comprising  the  terms  of  the 
argeemcnt,  and  afterward,  designing  to  elude  the  force  there- 
of and  get  loose  from  his  agreement,  ordered  his  daughter  to 
put  on  a  good  humor  and  get  the  plaintiff  to  deliver  up  the 
writing  and  then  to  marry  him,  which  was  accordingly 

1  Beanlsley  v.  Duntley,  69  N.  Y.  580.  See  also  HitchSns  p.  Pettingill, 
58  N.  Y.  386;  McDonald  v.  Youngblutter,  46  Fed.  Rep.  836;  Johnson  v. 
Johnson,  8  Baxter  (Term.)  261;  Morrison  v.  Collier,  79  Indiana,  417. 


568  STATUTE   OF  FRAUDS.  [CH.   XIX. 

done,  the  Master  of  the  Rolls  decreed  the  execution  of  the 
agreement. l 

§  445  a.  And  it  appears  to  be  a  general  rule  that  where 
the  verbal  promise  of  the  defendant  to  make  a  certain  dispo- 
sition of  lands  was  the  means  of  his  obtaining  to  himself  the 
legal  title  to  lands,  so  that  in  fact  he  practises  a  deception 
upon  his  grantor,  by  so  obtaining  the  lands  and  then  holding 
and  dealing  with  them  as  his  own,  a  court  of  equity  will 
compel  him  to  perform  his  verbal  engagement.2  This  prin- 
ciple is  recognized  in  the  cases  which  hold  that  a  conveyance 
of  land  absolute  on  its  face  may  be  shown  by  parol  testimony 
to  have  been  intended  at  the  time  as  a  mortgage.3  But 
where  there  is  no  deception  practised  in  obtaining  the  title, 
but  a  mere  verbal  promise  to  make  a  certain  disposition  of 
land  already  acquired,  the  promisor  will  not  be  held  as  a 
trustee.4 

§  445  6.  To  this  doctrine  of  equity,  that  a  title  obtained 
by  a  defendant  by  means  of  the  verbal  contract  cannot  be 
retained  by  him  on  the  ground  of  the  Statute  of  Frauds,  may 
be  referred  the  rule  that  where  the  title  is  obtained  by  one 


1  Mallet  v.  Halfpenny,   1  Eq.  Cas.   Abr.  20;  8.  c.  2  Vern.  373,  nom. 
Halfpenny  v.   Ballet.     This   case   is   related   very   graphically   by  Lord 
Chancellor   Cowper,  in  Bawdes  v.  Amhurst,  Finch.  Prec.  Ch.  404.     He 
says  he  well  remembered  that  this  case  was  heard  before  the  Master  of 
the  Rolls,  and  the  plaintiff  had  a  decree  on  the  ground  of  the  fraud,  and 
"  Halfpenny  walked  backwards  and  forwards  in  the  court,  and  bid  the 
Master  of  the  Rolls  observe  the  statute,  which  he  humorously  said,  '  I  do, 
I  do.  '  " 

2  Jones  v.  M'Doueal,  32  Miss.  179;  Cousins  v.  Wall,  3  Jones  (N.  C.) 
Eq.  43;  Fraser  v.  Child,  4  E.  D.  Smith  (N.  Y.)  153;  Cameron  ».  Ward, 
8  Ga.  245;  Arnold  v.  Cord,  16   Ind.  177;    Martin  v.  Martin,  16  B.  Mon. 
(Ky.)  8;  Hodges  v.  Howard,  5  R.  I.  149;  ante,  §§  94   et  seq.,  and  §  129; 
Hunt  v.  Roberts,  40  Me.  187;  Nelson  v.  Worrall.  20  Ta.  469;  Hidden  v. 
Jordan.  21    Cal.  92;  Coyle  v.  Davis,  20  Wis.  564;    Servis  v.  Nelson,  14 
N.  J.  Eq.  94;  Catalani  v.  Catalani,  124  Ind.  54;  Bohm  v.  Bohm,  9  Col. 
100;  Equitable  Co.  ».  Baltimore  Co.,  63  Md.  285. 

8  Babcock  v.  Wyman,   19   How.  (U.  S.)  289,  and  cases  there  cited; 
Jones  y.  Jones,  1  Head  (Tenn.)  105.     Ante,  §§  441  a,  et  seq. 
4  Ante,  §§  94  et  seq. 


CH.    XIX.]        VERBAL   CONTRACTS   ENFORCED  IN   EQUITY.  569 

who  holds  a  fiduciary  relation  to  the  plaintiff,  he  must  sur- 
render it  to  the  plaintiff  on  the  ground  of  that  fiduciary  rela- 
tion, although  he  is,  in  doing  so,  peforming  an  oral  contract 
to  that  effect. l 

§  446.  Lord  Keeper  North,  in  a  case  arising  a  few  years 
after  the  enactment  of  the  statute,  and  where  it  was  pleaded 
and  the  plea  allowed,  is  reported  to  have  been  of  opinion 
that  if  a  plaintiff  laid  in  his  bill  that  it  was  part  of  the 
agreement  that  the  agreement  should  be  put  in  writing,  it 
would  alter  the  case  and  possibly  require  an  answer.2  And 
he  appears  to  have  actually  decided  to  that  effect  in  the  case 
of  Leak  v.  Morrice,  occurring  shortly  afterward  at  the  same 
term.3  But  Lord  Thurlow,  when  the  first  of  these  cases  was 
quoted  before  him,  remarked  that  it  was  never  decided,  and 
added:  "I  take  that  to  be  a  single  case  and  to  have  been 
overruled.  If  you  interpose  the  medium  of  fraud,  by  which 
the  agreement  is  prevented  from  being  put  into  writing,  I 
agree  to  it;4  otherwise,  I  take  Lord  North's  doctrine  .  .  . 
to  be  a  single  decision,  and  contradicted,  though  not  ex- 
pressly, yet  by  the  current  of  opinions."5  In  speaking  of  it 
as  a  single  decision,  his  Lordship  would  seem  to  have  over- 
looked the  case  of  Leak  v.  Morrice ;  but  however  the  question 
might  stand  upon  a  view  of  the  early  authorities,  the  doc- 
trine referred  to  has  clearly  not  been  recognized  in  those  of 
later  years.  Indeed,  as  is  remarked  by  an  acute  writer  on 

1  Wakeman  v.  Dodd,  12  N.  J.  Eq.  567. 

8  Hollis  v.  Whiteing,  1  Vern.  151. 

«  Leak  t-.  Morrice,  2  Cas.  Ch.  135. 

4  Equitable  Co.  v.  Baltimore  Co.,  63  Md.  285. 

6  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  565.  See  Wood  v.  Midgley,  5 
De  G.,  M.  &  G.  41.  His  Lordship  at  the  same  time  says  that  the  Earl  of 
Aylesford's  case  (2  Stra,  783)  is  directly  contrary;  but,  on  reference  to 
that  decision,  it  is  not  clear  that  the  point  was  involved  in  it.  The  report 
simply  says:  "There  was  a  parol  agreement  for  a  lease  of  twenty-one 
years,  upon  which  the  lessee  entered,  and  enjoyed  for  six  years,  and  then 
the  Earl  brought  a  bill  against  him  to  oblige  him  to  execute  a  counter- 
part for  the  residue  of  the  term.  The  lessee  pleaded  the  Statute  of 
Frauds  and  Perjuries,  which  in  argument  was  overruled,  the  agreement 
being  in  part  carried  into  execution." 


570  STATUTE   OF  FKAUDS.  [CH.   XIX. 

equity  pleading,  "If  an  allegation,  that  it  was  part  of  the 
agreement  that  the  contract  should  be  put  in  writing,  could 
prevent  a  plea  of  the  statute,  the  effect  in  practice  would 
be,  that  the  statute  never  could  be  pleaded,  at  least  without 
a  particular  denial  of  such  allegation,  rendering  the  plea 
anomalous."  1 

§  447.  The  next  class  of  cases  in  which  equity  intervenes 
to  enforce  a  verbal  contract,  notwithstanding  the  Statute  of 
Frauds,  consists  of  those  where  one  party  has  done  certain 
acts  in  part  execution,  or  upon  the  faith  of  the  contract, 
with  the  knowledge  and  consent  of  the  other.2  And  although, 
for  the  sake  of  convenience,  it  is  here  treated  as  a  distinct 
subdivision  of  the  general  topic  of  equitable  doctrines  in 
regard  to  the  statute,  it  may  be  most  useful  to  ascertain  in 
what  respect  the  principles  upon  which  it  stands  differ  from 
those  of  the  cases  we  have  already  been  considering. 

§  448.  It  is  obvious  that  the  mere  circumstance  that  a  ver- 
bal agreement  has  been  in  part  performed,  can  afford  no 
reason,  such  as  to  control  the  action  of  any  court,  whether 
of  law  or  equity,  for  holding  the  parties  bound  to  perform 
what  remains  executory.  The  doctrine  of  equity  in  such 
cases  is,  that  where  an  agreement  has  been  so  far  executed 
by  one  party,  with  the  tacit  encouragement  of  the  other,  and 
relying  upon  his  fulfilment  of  it,  that  for  the  latter  to  repu- 
diate it  and  shelter  himself  under  the  provisions  of  the 
statute,  would  amount  to  a  fraud  upon  the  former,  that 
fraud  will  be  defeated  by  compelling  him  to  carry  out  the 
agreement.3 

1  Beames,  Elements  of  Pleas  in  Equity,  181.     See  also  Box  v.  Stan- 
ford,  13   Smedes  &  M.  (Miss.)  93;  Wilson  r.  Ray,   13  Ind.   1;  Glassy. 
Hulbert,  102  Mass.  30,  39. 

2  Whether  the  plaintiff  can  ever  rely  on  acts  of  part  performance  done 
by  the  defendant,  qucere.     See  §§  453,  471,  post. 

8  Seagood  v.  Meale,  Prec.  Ch.  560;  Savage  v.  Foster,  9  Mod.  35;  Mor- 
phett  v.  Jones,  1  Swanst.  172;  Clinan  v.  Cooke,  1  Schoales  &  L.  22; 
Gunter  v.  Halsey,  2  Ambler,  586;  Allen's  Estate,  1  Watts  &  S.  (Pa.)  383; 
Greenlee  v.  Greenlee,  22  Pa.  St.  225;  Moore  r.  Small,  19  Pa.  St.  461; 
Church  of  the  Advent  v.  Farrow,  7  Rich.  (S.  C.)  Eq.  378 ;  Sites  v.  Kellar, 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  571 

§  448  a.  "The  fraud,"  says  Judge  Wells  in  Glass  v.  Hul- 
bert,  "  most  commonly  treated  as  taking  an  agreement  out  of 
the  Statute  of  Frauds,  is  that  which  consists  in  setting  up 
the  statute  against  its  performance,  after  the  other  party  has 
been  induced  to  make  expenditures,  or  a  change  of  situation 
in  regard  to  the  subject-matter  of  the  agreement,  or  upon 
the  supposition  that  it  was  to  be  carried  into  execution,  and 
the  assumption  of  rights  thereby  to  be  acquired ;  so  that  the 
refusal  to  complete  the  execution  of  the  agreement  is  not 
merely  a  denial  of  rights  which  it  was  intended  to  confer, 
but  the  infliction  of  an  unjust  and  unconscientious  injury 
and  loss.  In  such  case,  the  party  is  held,  by  force  of  his 
acts  or  silent  acquiescence,  which  have  misled  the  other  to 
his  harm,  to  be  estopped  from  setting  up  the  Statute  of 
Frauds. " l 

§  448  b.  The  cases  which  have  already  been  considered 
present  the  feature  of  an  actual  fraud,  an  artifice,  a  trick, 
which,  being  alleged  and  proved,  was  relieved  against  by  the 
court  of  equity  without  any  reference  to  the  statute.  The 
fraud  in  cases  of  part-performance  is  no  less  fraud  because 

6  Ohio,  207;  Anthony  v.  Leftwich,  3  Rand.  (Va.)  255;  Hamilton  r.  Jones, 
3  Gill  &  J.  (Md.)  127;  Meach  v.  Stone,  1  D.  Chip.  (Vt.)  182;  Underbill 
v  Williams,  7  Blackf.  (Ind.)  125;  Eyre  v.  Eyre,  4  Green  (X.  J.)  10'2 ; 
Caton  v.  Caton,  L.  R.  1  Ch.  App.  137;  Ford  v.  Finney,  35  Ga.  258; 
Feusier  v.  Sneath,  3  Nev.  120;  Townsend  v.  Hawkins,  45  Mo.  286; 
Wheeler  ».  Reynolds,  66  N.  Y.  227:  Hart  v.  Carroll,  85  Pa.  St.  508;  Wil- 
liams v.  Morris,  96  U.  S.  444;  Thompson  v.  Simpson,  128  N.  Y.  270; 
Wendell  v.  Stone,  39  Hun  (N.  Y.)  382;  Union  Pacific  R.  R.  c.  McAlpiue, 
129  U.  S.  305;  Fallon  v.  Chronicle  Publishing  Co.,  1  Me  Arthur  (D.  of  C.) 
485;  Turner  v.  Johnson,  95  Mo.  431.  The  equitable  doctrine  of  part- 
performance  as  a  ground  for  enforcing  a  verbal  contract,  notwithstanding 
the  Statute  of  Frauds,  has  been  repudiated  in  some  few  of  the  States. 
Ellis  v.  Ellis,  1  Dev.  (N.  C.)  Eq.  341;  Dunn  v.  Moore,  3  Ired.  Eq.  (X.  C.) 
364;  Allen  v.  Chambers,  4  Ired.  (N.  C.)  Eq.  125;  Albea  v.  Griffin,  2  Dev. 
&  B.  (N.  C.)  Eq.  9 ;  Beaman  v.  Buck,  9  Smedes  &  M.  (Miss.)  207 ;  Box 
v.  Stanford,  13  Smedes  &  M.  (Miss.)  93;  Ridley  v.  McXairy,  2  Humph. 
(Tenn.)  174;  Patton  v.  M'Clure,  Mar.  &  Y.  (Tenn.)  333.  So  in  Massa- 
chusetts ;  see  Jacobs  r.  Peterborough  and  Shirley  R.  R.  Co.,  8  Cush.  223, 
and  cases  there  cited. 

1  Glass  v.  Hulbert,  102  Mass.  35.     See  Brown  v.  Hoag,  35  Minn.  373. 


572  STATUTE   OF  FRAUDS.  [CH.   XIX. 

not  asserted  to  have  been,  and  not,  in  fact,  premeditated  at 
the  inception  of  the  transaction.  Hence  those  courts  of 
equity  whose  established  powers  extend  to  all  cases  of  fraud 
of  whatever  description  are  able  to  enforce  the  contract,  and 
do  so  upon  the  ground  of  the  fraud,  and  upon  none  other. 
But  where,  as  in  some  of  the  American  States,  the  power  of 
courts  of  equity  to  enforce  contracts  in  cases  of  fraud  is 
specifically  given  them  by  statute,  it  is  an  important  inquiry 
whether  they  can  decree  execution  where  the  fraud  is  con- 
structive only,  arising  upon  the  circumstances  of  part-per- 
formance. 

§  449.  By  the  Revised  Statutes  of  Maine,  power  is  given 
to  the  Supreme  Judicial  Court  of  that  State  to  compel  speci- 
fic performance  of  contracts  in  writing  made  after  a  certain 
date  therein  mentioned,  in  all  cases  of  "fraud,  trust,  acci- 
dent, and  mistake ; "  1  enactments  which  have  received  the 
construction  of  that  court  in  the  following  case :  The  defend- 
ants verbally  agreed  to  sell  the  plaintiffs  a  lot  of  land  at  a 
certain  price,  relying  upon  which  agreement  the  plaintiffs 
built  a  house  upon  the  land  and  afterward  tendered  the  price 
and  requested  a  conveyance,  which  was  refused,  whereupon 
a  bill  was  filed  praying  that  the  defendant  might  be  com- 
pelled to  perform  his  agreement,  or  pay  the  value  of  the 
house,  and  that  he  be  restrained  from  obstructing  the  plain- 
tiffs in  their  occupation  of  it,  and  from  bringing  suits  against 
them  on  account  of  it.  In  the  opinion  of  the  court  it  is 
said,  that  if  it  was  intrusted  with  a  general  jurisdiction  in 
equity,  there  might  be  no  difficulty  in  decreeing  a  specific 
execution  of  the  agreement  on  the  ground  of  part-peform- 
ance;  but  that  its  jurisdiction  was  limited  in  such  cases.  It 
is  then  remarked,  that  it  had  been  decided  that  the  original 
statute  law  of  the  State  did  not  authorize  the  court  to  com- 
pel a  specific  performance  of  a  contract  in  writing,  and  the 
opinion  proceeeds  to  say:  "By  the  Revised  Statutes  such 

1  Rev.  Stat.  Cap.  96,  §  10.     And  in  the  Revised  Statutes  of  1871,  Cap. 
77,  §5. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  573 

power  is  given,  but  it  is  limited  to  contracts  in  writing, 
made  since  February  10,  1818.  It  is  contended,  however, 
by  the  counsel  for  the  plaintiffs,  that  a  specific  performance 
of  a  verbal  contract  may  be  decreed  by  virtue  of  the  statute 
giving  jurisdiction  in  all  cases  of  fraud.  If  the  court  were 
to  decree  the  specific  performance  ...  on  the  ground,  that 
after  part-performance,  it  was  a  fraud  upon  one  party  for  the 
other  to  refuse  to  execute  a  conveyance,  the  effect  would  be 
to  assume,  under  that  clause  of  the  statute,  the  very  juris- 
diction intentionally  denied  under  another  and  more  appro- 
priate clause.  During  the  revision  of  the  statutes  the  law 
relating  to  the  specific  performance  of  contracts  not  in  writ- 
ing, after  they  had  been  partially  executed,  was  doubtless 
noticed  and  considered  ;  and  it  appears  to  have  been  the  inten- 
tion not  to  authorize  under  any  circumstances  a  decree  for 
the  specific  performance  of  a  contract  not  made  in  writing. 
It  is  also  contended,  that  the  defendant  should  in  equity  be 
enjoined  from  claiming  and  asserting  a  title  to  the  lot,  after 
having  been  instrumental  in  causing  the  plaintiffs  to  expend 
their  money  in  building  upon  it  under  the  promise  of  a  title. 
It  is  true,  that  one,  who  hears  another  bargain  with  a  third 
person  for  an  estate,  and  sees  such  third  person  pay  for  it, 
or  expend  money  upon  it,  without  making  known  his  own 
title,  will  not  be  permitted  in  equity  to  disturb  him  in  the 
enjoyment  of  the  estate,  because  by  so  doing  he  knowingly 
abets  or  aids  the  seller  to  deceive  and  injure  htm.  The 
essential  ingredient  which  destroys  his  own  title  is  the 
knowledge,  that  the  purchaser  is  deceived  with  respect  to  the 
title,  and  that  he  must  suffer  by  it,  and  the  neglect,  when  he 
has  an  opportunity  to  do  so,  to  undeceive  him  and  save  him 
from  injury.  But  this  rule  cannot  be  applied  to  cases  of 
contract,  where  all  the  parties  to  the  contract  fully  under- 
stand the  true  state  of  the  title,  and  one  of  them  seeks  relief 
from  another.  The  plaintiffs  in  this  case  were  not  ignorant, 
that  the  title  to  the  lot  was  in  the  defendant,  and  that  they 
must  rely  upon  his  verbal  contract  to  obtain  a  title  to  it. 


574  STATUTE   OF  FKAUDS.  [CH.   XIX. 

If  the  defendant,  after  having  authorized  the  plaintiff  to 
place  the  building  upon  his  land,  had  by  any  act  converted 
it  to  his  own  use,  their  proper  remedy  to  recover  the  value 
of  it  would  have  been  an  action  of  trover,  and  not  a  suit  in 
equity.  It  is  not  therefore  necessary  to  consider,  whether 
the  testimony  presented  would  have  entitled  them  to  main- 
tain such  an  action.  It  is  not  perceived,  that  under  this 
process  the  court  has  any  power  to  relieve  the  plaintiffs  from 
the  inconvenience  or  loss  which  they  may  sustain  by  having 
inconsiderately  placed  too  great  confidence  in  the  verbal 
promise  of  the  defendant."  The  bill  was  dismissed  without 
costs.1 

§  450.  In  Massachusetts,  also,  the  equity  powers  of  the 
Supreme  Court  were  formerly  specifically  defined,  the  Revised 
Statutes  giving  it  power  to  enforce  contracts  in  writing,2 
and  an  act  passed  in  1855  giving  it  "jurisdiction  in  equity 
in  all  cases  of  fraud. "  3  The  latter  statute  does  not  appear 
to  have  received  a  judicial  construction  in  reference  to  cases 
of  part-performance.4  By  the  General  Statutes  5  full  equity 
jurisdiction  is  given  to  the  Supreme  Court,  and  this  provis- 
ion manifestly  covers  the  specific  execution  of  verbal  agree- 
ments within  the  Statute  of  Frauds.6 

1  Inhabitants  of  Wilton  v  Harwood,  23  Me.  133;  Patterson  v.  Yeaton, 
47  Me.  308.     See  Pulsifer  v.  Waterman,  73  Me.  233. 

2  Mass.  Rev.  Stat.  Cap.  74,  §  8. 
«  Stat.  1855,  Cap.  194,  §  1. 

4  In  the  case  of  Sanborn  v.  San  born,  the  point  was  raised  and  dis- 
cussed, but  as  the  suit  was  commenced  before  the  passage  of  the  statute 
of  1855,  the  court  gave  no  opinion  upon  it,  being  clear  that  they  had  no 
jurisdiction  of  the  suit,  it  being  for  specific  execution  of  a  verbal  contract, 
though  acts  of  part- performance  were  alleged.  The  bill  was  dismissed 
without  prejudice  to  the  complainants'  right  to  file  a  new  bill  framed 
upon  the  hypothesis  that  the  statute  of  1855  would  give  the  court  juris- 
diction as  of  the  fraud  arising  upon  the  alleged  part-performance.  San- 
born  v.  Sanborn,  7  Gray,  142.  No  report  of  the  subsequent  t  rial  and 
decision  has  been  found. 

6  Mass.  Gen.  Stat.  ch.  113,  §  2. 

«  Glass  v.  Hulbert,  102  Mass.  33 ;  Whelan  v.  Sullivan,  102  Mass.  204. 
It  has  been  decided  in  Massachusetts,  that  a  clause  of  the  Revised  Stnt- 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  575 

§  451.  It  is  settled  by  a  long  series  of  authorities,  that  a 
part  execution  of  a  verbal  contract  within  the  Statute  of 
Frauds  has  no  effect  at  law  to  take  the  case  out  of  its  pro- 
visions;1 but  this  of  course  does  not  apply  in  those  jurisdic- 
tions where  law  and  equity  powers  are  merged  in  the  courts, 
sitting  nominally  as  courts  of  law.  Mr.  Justice  Buller  did 
on  one  occasion  lay  it  down,  that  as  there  could  be  but  one 
construction  of  the  statute,  and  that  construction  should 
hold  equally  in  courts  of  law  and  equity,  the  equitable  rules 
in  regard  to  part-performance  should  apply  in  law.2  Lord 
Redesdale  says,  however,  that  he  remembers,  when  Mr. 
Justice  Buller  was  pressed  with  the  consequences  of  that 
opinion,  in  the  case  of  a  demurrer  to  evidence,  he  was 
obliged  to  abandon  the  position;  and  he  adds  that  "the 
ground  on  which  a  court  of  equity  goes,  in  cases  of  part- 


utes  giving  the  court  jurisdiction  of  all  suits  concerning  waste,  etc., 
extended  only  to  cases  of  technical  waste,  and  not  to  cases  of  mere 
trespass  where  there  is  no  priority  of  title,  in  which  courts  of  equity  hav- 
ing full  powers  had  sometimes  granted  injunctions  to  stay  irreparable 
damage  to  the  inheritance.  Attaquin  v.  Fish,  5  Met.  140.  In  1874  full 
equity  jurisdiction  was  conferred  upon  the  courts  of  Maine. 

1  O'Herlihy  v.  Hedges,  1  Schoales  &  L.  123;  Kelly  r.  Webster,  12  C.  B. 
283  ;  Lane  v.  Shackford,  5  N.  H.  130;  Inhabitants  of  Freeport  v.  Bartol, 
3  Greenl.  (Me.)  340;  Patterson  v.  Cunningham,  12  Me.  506;  Norton  v. 
Preston,  15  Me.  li;  Newell  v.  Newell,  13  Vt.  24;  Thompson  v.  Gould, 
20  Pick.  (Mass.)  134;  Kidder  v.  Hunt,  1  Pick.  (Mass.)  328;  Adams  v. 
Townsend,  1  Met.  (Mass.)  483;  Eaton  v.  Whitaker,  ISConn.  222;  Thomas 
v.  Dickinson,  14  Barb.  (N.  Y.)  90;  Abbott  v.  Draper,  4  Denio  (N.  Y.)  51 ; 
Jackson  u.  Pierce,  2  Johns.  (N.  Y.)  221;  Seymour  v.  Davis,  2  Sand. 
(N.  Y.)  239;  Walter  v.  Walter,  1  Whart.  (Pa.)  292;  Henderson  v.  Hays, 
2  Watts  (Pa.)  148;  Sailors  v.  Gambril,  Smith  (Ind.)  82;  Johnson  v. 
Hanson,  6  Ala.  351;  Allen  v.  Booker,  2  Stew.  (Ala.)  21;  Meredith  v. 
Naish,  4  Stew.  &  P.  (Ala.)  59;  Payson  v.  West,  Walker  (Miss.)  515; 
Davis  v.  Moore,  9  Rich.  (S.  C.)  Law,  215;  Wentworth  v.  Buhler,  3  E.  D. 
Smith  (N.  Y.)  305;  Pike  v.  Morey,  32  Vt.  87;  Boutwell  v.  O'Keefe,  32 
Barb.  (X.  Y.)  434;  Downey  ».  Hotchkiss,  2  Day  (Conn.)  225;  Hunt  r. 
Coe,  15  Iowa,  197 ;  Creighton  v.  Sanders,  89  111.  543 ;  Dougherty  v.  Cat- 
lett,  129  111.  431 ;  Henry  v.  Wells,  48  Ark.  485.  See  Green  p.  Jones,  76 
Me.  563. 

a  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326. 


576  STATUTE   OF   FRAUDS.  [CH.   XIX. 

performance,  is  that  sort  of  fraud  which  is  cognizable  in 
equity  only. "  1 

§  452.  The  right  of  a  party  who  has  done  acts  in  part  exe- 
cution of  a  verbal  contract,  to  call  upon  a  court  of  equity  to 
enforce  it  against  the  other,  is  subject  to  the  same  general 
restrictions  as  that  of  any  other  plaintiff  in  equity.  He 
must  of  course  show  that  he  is  himself  ready  to  perform  the 
contract  on  his  part.  It  must  also  appear  that  his  position 
is  such  that  an  action  at  law  for  damages  will  not  afford  him 
adequate  relief.2  And,  as  will  be  hereafter  discussed  more 
at  length,  he  must  furnish  clear  and  full  proof  of  the  con- 
tract, so  that  it  may  be  enforced  finally,  and  with  due  regard 
to  the  rights  of  all  parties  concerned.3 

§  453.  Again,  the  acts  of  part-performance  relied  upon  by 
the  plaintiff  must  be  acts  done  by  himself.  This  appears  to 
have  been  first  declared  in  the  case  of  Buckmaster  v.  Harrop, 
where  the  Master  of  the  Rolls,  Sir  William  Grant,  said  that 
acts  done  by  the  defendant,  where  there  was  no  prejudice  to 
the  plaintiff,  amounted  only  to  proof  of  the  existence  of  an 
agreement,  but  that  the  objection  upon  the  statute,  that  the 
agreement  was  not  in  writing,  remained;  adding,  that  the 
court  did  not  profess  to  execute  a  ver.bal  agreement  merely 
because  it  was  satisfactorily  proved.4  In  support  of  this  prop- 
osition, he  cited  the  case  of  Whaley  v.  Bagnel,  in  the  House 


1  O'Herlihy  v.  Hedges,  1  Schoales  &  L.  130.     In  Humphreys  v.  Green, 
L.  R.  10  Q.  B.  D.  148,  it  was  fully  discussed  by  the  judges  of  the  Queen's 
Bench  Division  on  appeal,  whether  damages  might  not  be  recovered  for 
breach  of  a  contract  to  devise  land  in  a  suit  at  law  based  upon  alleged 
part-performance  by  the  party  suing. 

2  Frame  v.  Dawson,  14  Ves.  386  ;  Pembroke  v.  Thorpe,  cited  3  Swanst. 
441,  note;  Eckert  v.  Eckert,  3  Penna.  Rep.  332;  Parkhurst  v.  Van  Cort- 
landt,  1  Johns.  (N.  Y.)  Ch.  273;  Townsend  v.  Sharp,  2  Overt.  (Tenn.) 
192  ;  Armstrong  v.  Kattenhorn,  11  Ohio,  265;  Wright  v.  Pucket,  22Grat. 
(Va.)  370;  Williams  «.  Morris,  95  U.  S.  444;  Sheldon  v.  Preva,  57  Vt. 
263. 

*  Pout,  §§  493  et  seq. 

4  Buckmaster  v.  Harrop,  7  Ves.  341.     See  Glass  v.  Hulbert,  102  Mass. 
30. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  577 

of  Lords,  which,  however,  does  not  appear  to  have  involved 
an  adjudication  upon  it.1  But  it  cannot  require  many  au- 
thorities for  its  support,  being  founded  in  manifest  reason 
and  justice.  If  the  defendant  chooses  to  waive  the  benefit 
of  his  own  acts  of  part-performance,  which  would  entitle 
him  to  allege  a  fraud  on  the  part  of  the  plaintiff,  it  cannot 
be  that  the  plaintiff  may  force  him  to  rely  upon  them,  thus, 
in  effect,  himself  setting  up  his  own  fraud.2  The  decision 
in  Buckmaster  v.  Harrop  has  indeed  been  attacked  in  Penn- 
sylvania, but  entirely  without  necessity ;  the  court  having  to 
determine  simply  in  that  case,  whether  delivery  of  possession 
of  land  could  be  asserted  by  the  vendor  plaintiff  as  an  act  of 
part-performance  done  by  himself;  apparently  losing  sight 
of  the  distinction,  which  is  more  particularly  noted  here- 
after,8 between  his  so  asserting  it,  and  his  asserting  the  pur- 
chaser's taking  possession,  —  an  act  which,  by  the  rule  in 
Buckmaster  v.  Harrop,  could  only  be  relied  on  by  the  pur- 
chaser, or  those  claiming  under  him.4  With  the  exception 
of  this  case,  there  appears  to  be  no  dissent  from  that  rule, 
on  the  part  of  any  judicial  or  other  authority.6 

§  454.  Another  general  rule  in  regard  to  the  acts  relied 
upon  is,  that  they  must  appear  to  have  been  done  in  pur- 
suance of  the  contract  alleged.  To  use  the  language  of  Lord 
Hardwicke,  "  it  must  be  such  an  act  done,  as  appears  to  the 
court  would  not  have  been  done,  unless  on  account  of  the 
agreement;"6  or,  as  it  is  expressed  by  Sir  William  Grant, 

*  Whaley  v.  Bagnel,  1  Bro.  P.  C.  345. 

2  Rathbun  v.  Rathbun,  6  Barb.  (N.  Y.)  98 ;  Barnes  v.  Boston  &  Maine 
R.  R.  130  Mass.  388.  But  see  Bard  r.  Elston,  31  Kansas  274. 

»  Post,  §§  468  et  seq. 

4  Pngh  ».  Good,  3  Watts  &  S.  (Pa.)  56.  See  Brown  ».  Hoag,  35 
Minn.  373. 

6  See  Sugden,  Vend.  &  P.  169.  Roberts  on  Frauds,  139;  Cameron  r. 
Austin.  65  Wise.  652.  In  Caton  v.  Caton,  L.  R.  1  Ch.  App.  148,  Cran- 
worth,  L.  C.,  says:  "  I  presume  it  will  not  be  argued  that  any  conse- 
quence can  be  attached  to  acts  of  part-performance  by  the  party  sought  to 
be  charged." 

8  Lacon  v.  Mertins,  3  Atk.  4. 

87 


578  STATUTE   OF  FRAUDS.  [CH.   XIX. 

it  must  be  "an  act  unequivocally  referring  to,  and  resulting 
from,  the  agreement."1  This  rule  is  laid  down  in  many 
cases,  and  will  be  found  fully  illustrated  hereafter,  when  we 
come  to  consider  in  detail  the  different  classes  of  acts  which 
are  commonly  relied  upon  as  part-performance. 

§  455.  It  has  been  sometimes  said  that  the  acts  of  part- 
performance,  in  order  to  avail  a  plaintiff  seeking  relief  by 
specific  execution,  must  be  such  as  unequivocally  prove  the 
contract  alleged.  And,  upon  this  view,  it  has  been  remarked 
by  Mr.  Roberts,  that  the  entire  doctrine  of  enforcing  a  con- 
tract in  equity  on  the  ground  of  part-performance  proceeds  in 
a  circulating  course  of  reasoning;  that  it  assumes  the  exist- 
ence of  the  contract,  inasmuch  as  the  acts  must  have  been 
done  with  a  direct  view  to  perform  a  particular  agreement, 
and  that  thus  the  acts  relied  on  prove  and  are  proved  from 
the  agreement  at  the  same  time ;  and  he  adds  that  "  to  call 
anything  a  part-performance  before  the  existence  of  the  thing 
whereof  it  is  said  to  be  the  part-performance  is  established, 
is  an  anticipation  of  proof  by  assumption,  and  gets  rid  of 
the  statute  by  jumping  over  it;  for  the  statute  requires  proof, 
and  prescribes  the  medium  of  proof. "  2  So  far  as  this  view 

1  Frame  v.  Dawson,  14  Ves.  386.  See  upon  this  rule  the  following 
cases :  Buckmaster  v.  Harrop,  7  Ves.  341 ;  Lindsay  r.  Lynch,  2  Schoales 
&  L.  1 ;  O'Reilly  v.  Thompson,  2  Cox,  271  ;  Parker  v.  Smith,  1  Coll.  Ch. 
624;  Morphett  v.  Jones,  1  Swanst.  172  ;  Brennan  v.  Bolton,  2  Dm.  &  War. 
349;  Cooth  v.  Jackson,  6  Ves.  12;  Rathbun  v.  Rathbun,  6  Barb.  (N.  Y  ) 
98;  North  v.  Forest,  15  Conn.  400;  Osborn  v.  Phelps,  19  Conn.  74; 
Moore  v.  Small,  19  Pa.  St.  461;  Eckert  v.  Eckert,  3  Penna.  Rep.  332; 
Frye  v.  Shepler,  7  Pa.  St.  91  ;  Moale  r.  Buchanan,  11  Gill  &  J.  (Md.) 
314 ;  Hamilton  v.  Jones,  3  Gill  &  J.  (Md.)  127  ;  Shepherd  r.  Shepherd,  1 
Md.  Ch.  Dec.  244;  Owings  v.  Baldwin,  8  Gill  (Md.)  337;  Shepherd  v. 
Bevin,  9  Gill  (Md.)  32;  Hall  v.  Hall,  2  McCord  (S.  C.)  Ch.  269;  Kawlins 
v.  Shropshire,  45  Ga.  182;  Townsend  v.  Sharp,  2  Over.  (Tenn  )  192; 
Armstrong  r.  Kattenhorn,  11  Ohio,  265;  Cole  v.  Potts,  10  N.  J.  Eq.  67  ; 
Jervisr.  Smith,  Hoff.  (N.  J.)  Ch.  470;  Cutsinger  v.  Ballard.  115  Ind. 
93;  Dncie  v.  Ford,  8  Montana,  233;  Sullivan  r.  Ross  Estate,  98  Mich. 
570;  Koch  v.  National  Building  Association,  137  Til.  497;  Shahan  v. 
Swan,  48  Ohio  St.  25 ;  Wallace  r.  Rappleye,  103  111.  229. 

3  Roberts  on  Frauds,  135. 


CH.   XIX.]       VERBAL   CONTRACTS  ENFORCED   IN   EQUITY.  579 

tends  only  to  prove  general  unsoundness  in  the  equitable 
doctrine  of  part-performance,  it  would  be  of  little  practical 
importance  to  discuss  it,  now  that  the  doctrine  is  so  firmly 
rooted  in  the  jurisprudence  of  both  England  and  our  own 
country.  But  it  seems  to  confound  two  branches  of  that 
doctrine  which  are,  and  it  is  most  material  should  be,  kept 
entirely  distinct;  namely,  the  use  of  parol  evidence  to  prove 
the  terms  of  the  contract,  and  the  use  of  parol  evidence  to 
prove  part-performance.  The  latter  evidence  is  that  which, 
in  such  cases,  is  required  to  be  first  introduced.  It  is  mani- 
fest that  the  two  classes  of  evidence  cannot  be  required  for 
proving  precisely  the  same  thing.  If  the  acts  of  part-per- 
formance prove  the  whole  contract,  there  is  no  occasion  for 
any  parol  evidence  of  its  terms,  and  no  difficulty  whatever 
arises  under  the  Statute  of  Frauds.  It  is  true,  the  acts 
relied  on  must  ultimately  appear  to  have  been  done  in  pur- 
suance of  the  contract  sought  to  be  enforced,  or  the  whole 
equity  of  the  plaintiff  fails.  But  they  are  not  put  in  evi- 
dence to  prove  what  that  contract  is,  that  being  the  office  of 
the  parol  evidence  to  which  the  proof  of  them  opens  the 
door.  They  are  put  in  evidence,  in  the  first  instance,  to 
show  that  the  parties  have  entered  into  some  contract,  and 
they  must  be  such  as  clearly  to  show  that  fact.  Vice-Chan- 
cellor Sir  James  Wigram  says:  "It  is,  in  general,  of  the 
essence  of  such  an  act  that  the  court  shall,  by  reason  of  the 
act  itself,  without  knowing  whether  there  was  an  agreement 
or  not,  find  the  parties  unequivocally  in  a  position  different 
from  that  which,  according  to  their  legal  rights,  they  would 
be  in  if  there  were  no  contract.  A  common  example  of 
this  is  the  delivery  of  possession.  One  man,  without  being 
amenable  to  the  charge  of  trespass,  is  found  in  the  posses- 
sion of  another  man's  land.  Such  a  state  of  things  is  con- 
sidered as  showing  unequivocally  that  some  contract  has  taken 
place  between  the  litigant  parties ;  and  it  has,  therefore,  on 
that  specific  ground,  been  admitted  to  be  an  act  of  part-per- 
formance. But  an  act  which,  though  in  truth  done  in  pur- 


580  STATUTE   OF  FRAUDS.  [CH.   XIX. 

suance  of  a  contract,  admits  of  explanation  without  supposing 
a  contract,  is  not,  in  general,  admitted  to  constitute  an  act 
of  part-performance  taking  the  case  out  of  the  Statute  of 
Frauds;  as,  for  example,  the  payment  of  a  sum  of  money, 
alleged  to  be  purchase-money.  The  fraud,  in  a  moral  point 
of  view,  may  be  as  great  in  the  one  case  as  in  the  other; 
but  in  the  latter  cases  the  court  does  not  in  general  give 
relief."1 

§  455  a.  The  question  of  the  principle  upon  which  courts 
of  equity  proceed  in  enforcing  oral  contracts  covered  by  the 
Statute  of  Frauds,  which  have  been  acted  upon  by  the  party 
seeking  relief,  has  received  very  thorough  consideration  in 
Maddison  v.  Alderson,  before  the  House  of  Lords.2  The 
case  was  that  an  intestate  induced  a  woman  to  serve  him  as 
his  housekeeper  without  wages  for  many  years,  and  to  give 
up  other  prospects  of  establishment  in  life,  by  the  verbal 
promise  to  make  a  will  leaving  her  a  life  estate  in  land,  and 
afterwards  signed  a  will,  not  duly  attested,  by  which  he  left 
her  the  life  estate ;  and  it  was  held  that  there  was  no  con- 
tract, and  that  even  if  there  had  been,  and  although  the 
woman  had  wholly  performed  her  part  by  serving  till  the 
intestate's  death  without  wages,  yet  her  service  was  not 
unequivocally  and  in  its  nature  referable  to  any  contract, 
and  was  not  such  a  part-performance  as  to  take  the  case  out 
of  the  operation  of  the  Statute  of  Frauds,  and  that  she  could 
not  maintain  an  action  against  the  heir  for  a  declaration 
that  she  was  entitled  to  a  life  estate  in  the  land.3  The  Lord 
Chancellor  (Selborjie)  said:  "In  a  suit  founded  on  part- 
performance,  the  defendant  is  really  '  charged  '  upon  the 
equities  resulting  from  the  acts  done  in  execution  of  the 
contract,  and  not  (within  the  meaning  of  the  statute)  upon 
the  contract  itself.  If  such  equities  were  excluded,  injus- 

1  Dale  v.  Hamilton,  5  Hare,  381.     And  see  Forster  v.  .Hale,  3  Ves. 
Jr.  696.     Also  §  463  notes,  post. 

2  Maddison  v.  Alderson,  8  App.  Cas.  476. 
»  See  sec.  463,  note  2. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  581 

tice  of  a  kind  which  the  statute  cannot  be  thought  to  have 
had  in  contemplation  would  follow.  Let  the  case  be  sup- 
posed of  a  parol  contract  to  sell  land,  completely  performed 
on  both  sides,  as  to  everything  except  conveyance ;  the 
whole  purchase-money  paid ;  the  purchaser  put  into  posses- 
sion; expenditure  by  him  (say  in  costly  buildings)  upon 
the  property;  leases  granted  by  him  to  tenants.  The  con- 
tract is  not  a  nullity;  there  is  nothing  in  the  statute  to  estop 
any  court  which  may  have  to  exercise  jurisdiction  in  the 
matter  from  inquiring  into  and  taking  notice  of  the  truth  of 
the  facts.  All  the  acts  done  must  be  referred  to  the  actual 
contract,  which  is  the  measure  and  test  of  their  legal  and 
equitable  character  and  consequences.  If,  therefore,  in  such 
a  case  a  conveyance  were  refused,  and  an  action  of  ejectment 
brought  by  the  vendor  or  his  heir  against  the  purchaser, 
nothing  could  be  done  towards  ascertaining  and  adjusting 
the  equitable  rights  and  liabilities  of  the  parties,  without 
taking  the  contract  into  account.  The  matter  has  advanced 
beyond  the  stage  of  contract ;  and  the  equities  which  arise 
out  of  the  stage  which  it  has  reached  cannot  be  administered 
unless  the  contract  is  regarded.  The  choice  is  between 
undoing  what  has  been  done  (which  is  not  always  possible, 
or,  if  possible,  just)  and  completing  what  has  been  left 
undone.  The  line  may  not  always  be  capable  of  being  so 
clearly  drawn  as  in  the  case  which  I  have  supposed ;  but  it 
is  not  arbitrary  or  unreasonable  to  hold  that  when  the  statute 
says  that  no  action  is  to  be  brought  to  charge  any  person 
upon  a  contract  concerning  land,  it  has  in  view  the  simple 
case  in  which  he  is  charged  upon  the  contract  only,  and  not 
that  in  which  there  are  equities  resulting  from  res  (jestce  sub- 
sequent to  and  arising  out  of  the  contract.  So  long  as  the 
connection  of  those  res  gestce  with  the  alleged  contract  docs 
not  depend  upon  mere  parol  testimony,  but  is  reasonably  to 
be  inferred  from  the  res  gestce  themselves,  justice  seems  to 
require  some  such  limitation  of  the  scope  of  the  statute, 
which  might  otherwise  interpose  an  obstacle  even  to  the 


582  STATUTE    OF   FRAUDS.  [cH.  XIX. 

rectification  of  material  errors,  however  clearly  proved,  in 
an  executed  conveyance,  founded  upon  an  unsigned  agree- 
ment." The  case  is  an  instructive  one,  and  Lord  Selborne's 
opinion  contains  a  careful  review  of  the  authorities. 

§  456.  These  remarks,  though  they  may  somewhat  antici- 
pate the  discussion,  which  it  has  been  thought  best  to  defer 
to  a  later  page,  of  what  acts  are  or  are  not  deemed  sufficient 
as  part-performance,  are  valuable  at  this  point,  as  embody- 
ing, in  singularly  clear  and  forcible  phrase,  the  correct  rule 
as  to  the  extent  to  which  acts  of  part-performance  may  be 
said  themselves  to  afford,  or  to  be  required  to  afford,  proof 
of  the  contract  alleged.  There  are  indeed  some  cases  1  in 
which  it  is  broadly  laid  down  that  they  must  themselves  fur- 
nish unequivocal  evidence  of  the  contract  alleged,  but  this 
leaves  the  whole  doctrine  exposed  to  the  criticism  of  Mr. 
Roberts,  by  confounding  the  offices  and  degrees  of  the  two 
classes  of  parol  evidence;  the  first,  to  prove  some  contract 
existing;  the  second,  to  prove  the  terms  of  that  contract; 
the  first,  to  sustain  the  allegation  of  fraud  so  as  to  let  in  the 
second ;  the  second,  to  satisfy  the  court  of  all  the  terms  of 
that  contract  which  it  is  called  upon  to  enforce.  And  these 
cases,  to  this  extent,  are  opposed  to  the  clear  preponderance 
of  judicial  opinion.2  They  would  seem  to  have  proceeded 
upon  an  imperfect  apprehension  of  the  force  of  Sir  William 
Grant's  language  that  the  acts  of  part-performance  must 
"  unequivocally  refer  to  the  agreement ; "  which  means  that 
they  must  appear  to  have  been  done  in  pursuance  of  it,  but 

1  Phillips  v.   Thompson,  1  Johns.  (N.  Y.)  Ch.  131;  Beard  v.  Linthi- 
cum,   1   Md.   Ch.  Dec    345;  Grant  ?>.    Craigmiles,    1    Bibb    (Ky.)    203; 
Chesapeake  &  Ohio  Canal  Co.  v.  Young,  3  Md.  480;  Goodhue  v.  .Barn- 
well    Rice  (S  C.)  Eq.  198;  Sitton  v.  Shipp,  65  Mo.  297. 

2  Allan  v.  Bower,  3  Bro.  C.  C.  149 ;  Morphett  v.  Jones,  1  Swanst.  172; 
Frame  v.  Dawson,  14  Ves.  386;  Sutherland  ».  Briggs,  1  Hare,  26;  Savage 
v.  Carroll,  1  Ball  &  B.  265;  Toole  v.  Medlicott,  1  Ball  &  B  393;  Church 
v.   Sterling,  16  Conn.   388 ;  Harris  v.  Knickerbacker,  5  Wend.  (N.  Y.) 
638;  Parkhurst  v.  Van  Cortland,  14  Johns.  (X.  Y.)  15;  Jones  r.  Peter- 
man,  3  Sere.  &  R.  (Pa.)  543 ;  Grant  v.  Grant,  63  Conn.  530 ;  Andrews  r. 
Babcock,  Ibid.  109,  122. 


CH.    XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  583 

not  that  they  must  themselves,  and  without  any  suppletory 
evidence,  prove  the  terms  of  it. 

§  457.  It  is  also  sometimes  further  said  that  the  acts  of 
part-performance  relied  upon  by  the  plaintiff  must  have  been 
done  in  execution  of  the  contract,  or,  as  Mr.  Roberts  ex- 
presses it,  "must  appear  to  be  done  with  a  direct  view  to 
perform  the  agreement,  and  tend  inceptively  towards  its 
accomplishment. "  l  Acts  of  part-performance  do,  ex  vi  ter- 
mini, it  would  seem,  come  under  this  description.  Still,  it 
is  often  the  case  that  acts  are  done  by  the  plaintiff,  and 
acquiesced  in  by  the  defendant,  which  cannot  be  said  to  be 
done  in  execution  of  the  contract,  because  the  contract  does 
not  stipulate  that  they  should  be  done,  yet  which  are  such 
that  if  the  defendant  acquiesced  in  their  being  done,  it  would 
prevent  him  from  afterward  relying  upon  the  statute,  — acts, 
for  instance,  so  connected  with  the  performance  of  the  con- 
tract that  from  the  nature  of  the  case  the  defendant  should 
understand  they  were  done  in  reliance  upon  his  agreement. 
An  illustration  of  this  is  found  in  the  rule  that  the  expendi- 
ture by  the  plaintiff  of  money  in  improvements  upon  the  land 
may  entitle  him  to  specific  performance,  although  this  formed 
no  part  of  what  he  was  to  do  under  the  terms  of  the  con- 
tract. On  the  other  hand,  however,  it  is  obvious  that  the 
acts  done  must  obviously  be  related  to  and  connected  with 
the  contract  and  the  defendant's  performance  of  it.  If  any 
act,  however  disconnected  with  the  agreement,  which  a 
plaintiff  might  proceed  to  do  upon  the  faith  of  the  agree- 
ment, were  to  be  regarded  as  a  reason  for  the  interposition 
of  equity,  because  prejudicial  to  him,  known  to  the  defend- 
ant, and  incapable  of  adequate  compensation  in  damages, 
the  inconvenience  would  be  serious  and  manifest.2 

1  Roberts  on  Frauds,  140.  See  (Junter  v.  Halsey,  2  Ambl.  586 ;  Buck- 
master  v.  Harrop,  7  Ves.  341. 

8  See  Parker  v.  Heaton,  55  Ind.  1 ;  Williams  v.  Morris,  90  U.  S.  444 ; 
Lydick  v.  Holland,  83  Mo.  783.  In  \Vhitchurch  v.  Bevis,  2  Bro.  C.  C. 
5o9.  the  bill  stated,  among  other  circumstances  which  were  relied  upon  to 
meet  the  defence  of  the  statute,  that  "the  plaintiff  had,  with  the  privity 


584  STATUTE   OF   FRAUDS.  [CH.   XIX. 

§  457  a.  It  is  important  here,  as  well  as  throughout  the 
discussion  of  the  question  of  equity  jurisdiction  over  the 
enforcement  of  oral  contracts  in  which  the  defence  of 
the  Statute  of  Frauds  may  be  relied  upon,  to  bear  in  mind 
the  nature  and  foundation  of  that  jurisdiction.  It  is  to  be 
remembered  that  the  term  "  part-performance  "  falls  short  of 
describing  the  whole  doctrine  and  theory  of  courts  of  equity 
in  this  matter.1  The  principle  is  well  stated  in  a  case  fre- 
quently referred  to  in  this  chapter.2  After  pointing  out  the 
general  head  of  equity  jurisdiction,  viz.,  fraud,  the  Supreme 
Court  of  Massachusetts,  by  Wells,  J.,  says:  "The  fraud 
most  commonly  treated,  as  taking  an  agreement  out  of  the 
Statute  of  Frauds  is  that  which  consists  in  setting  up  the 
statute  against  its  performance,  after  the  other  party  has 
been  induced  to  make  expenditures,  or  a  change  of  situation 
in  regard  to  the  subject-matter  of  the  agreement,  or  upon 

and  consent  of  the  defendant,  entered  into  articles  with  a  third  person 
(Webb)  to  grant  him  a  lease  of  the  premises  for  seven  years,  as  soon  as 
he  should  be  in  possession  of  the  lease  from  the  defendant."  The  ques- 
tions presented  and  decided  in  the  case  related  only  to  the  pleadings,  but, 
in  the  course  of  the  hearing,  in  reply  to  a  suggestion  by  the  counsel  for 
the  plaintiff  that  the  sufficiency  of  the  part-performance  alleged  could  not 
be  argued  till  the  hearing  on  the  merits,  the  Lord  Chancellor,  Thurlow, 
said:  "Supposing  you  have  laid  a  sufficient  part-performance  in  your  bill, 
I  cannot  conceive  the  plea  would  have  held.  .  .  .  But  the  great  point  is, 
whether  you  can  plead  the  Statute  of  Frauds,  without  supporting  the 
plea  by  an  answer,  averring  that  there  was  no  parol  agreement.  I  put 
out  of  the  case  all  the  facts,  charged  in  the  bill  as  a  part-performance, 
considering  them  as  weak  and  trivial,  and  by  no  means  amounting  to  a 
part-performance."  It  will  be  noticed  that  the' last  remark  was  obiter, 
and  the  language  of  Lord  Thurlow  does  not  warrant  the  inference  that  he 
intended  thereby  to  make  any  statement  concerning  the  general  doctrines 
of  part-performance,  but  simply  to  show  that,  in  the  case  before. him, 
enough  was  not  alleged  to  give  a  court  of  equity  the  power  to  enforce 
performance  of  the  contract. 

1  As  was  well  said  by  the  court  in  Meach  v.  Perry,  1  D.  Chip  (Vt.) 
191,  "The  question   never  ought   to  have  been,    Is   it  a  ca?e  of  part- 
performance  ?     But,  does  the  part-performance,  with  the  attending  cir- 
cumstances, make  a  case  of  fraud,  against  which  a  court  of  equity  can 
relieve  1 "     See  Brown  r.  Hoag,  35  Minn.  373. 

2  Glass  v.  Hulbert,  102  Mass.  34,  35. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  585 

the  supposition  that  it  was  to  be  carried  into  execution,  and 
the  assumption  of  rights  thereby  to  be  acquired;  so  that  the 
refusal  to  complete  the  execution  of  the  agreement  is  not 
merely  a  denial  of  right^which  it  was  intended  to  confer, 
but  the  infliction  of  an  unjust  and  unconscientious  injury 
and  loss.  In  such  case,  the  party  is  held,  by  force  of  his 
acts  or  silent  acquiescence,  which  have  misled  the  other  to 
his  harm,  to  be  estopped  from  setting  up  the  Statute  of  ,/ 
Frauds. "  1  Bearing  in  mind,  as  was  said  in  another  part  of 
the  same  opinion,  "the  purport  and  force  of  the  statute, 
which  reaches  no  farther  than  to  deny  the  right  of  action  to 
enforce  such  agreements,"  we  see  here  a  plain  and  satisfac- 
tory ground  for  equitable  jurisdiction,  together  with  a  clear 
indication  of  the  proper  limitations  of  its  exercise.  A 
plaintiff,  seeking  specific  performance  of  an  oral  agreement 
affected  by  the  statute,  must  be  able  to  show  clearly  not  only 
the  terms  of  the  contract,  but  also  such  acts  and  conduct  of 
the  defendant  as  the  court  would  hold  to  amount  to  a  repre- 
sentation that  he  proposed  to  stand  by  his  agreement  and  not 
avail  himself  of  the  statute  to  escape  its  performance ;  and 
also  that  the  plaintiff,  in  reliance  on  this  representation, 
has  proceeded,  either  in  performance  or  pursuance  of  his 
contract,  to  so  far  alter  his  position  as  to  incur  "  an  unjust 
and  unconscientious  injury  and  loss,  in  case  the  defendant 
is  permitted  after  all  to  rely  upon  the  statutory  defence." 
After  proof  of  this,  the  court  may  well  be  justified  in  using 
its  undoubted  power,  in  cases  of  equitable  estoppel,  to  refuse 
to  listen  to  a  defendant  seeking  to  deny  the  truth  of  his  own 
representations  previously  made. 
§  458.  The  change  of  situation  necessary  to  create  the 

1  See  similar  statements  of  the  doctrine  in  Swain  v.  Seamens,  9  Wall. 
(U.  S.)  254;  Neale  v.  Neales,  9  Wall.  (U.  S.)  1  ;  Tate  v.  Jones,  16  Fla. 
216  ;  Ungley  v.  Ungley,  4  Ch.  Div.  73.  And  on  the  general  ground  of  a 
person  being  estopped  by  his  conduct  to  rely  upon  this  defence,  see  Vicks- 
burg  &  Meridian  R.  R.  Co.  v.  Ragsdale,  54  Miss.  200;  Hayes  v.  Living- 
ston, 34  Mich.  384;  Gheen  v.  Osborne,  11  Heisk.  (Tenn.)  61  ;  Brown  ». 
Hoag,  35  Minn.  373;  O' Fallen  v.  Clopton,  89  Mo.  284. 


586  STATUTE   OF   FKAUDS.  [CH.   XIX. 

equitable  estoppel  must  have  been  made  in  reliance  upon  and 
in  pursuance  of  the  contract,  although  it  is  not  confined  to 
the  doing  of  what  the  contract  stipulates,  i.  e.,  part- per- 
formance, strictly  so  called.1  As  that  phrase,  however,  is 
commonly  used  as  a  short  and  convenient  statement  of  the 
general  ground  of  specific  performance,  it  will  be  used  in 
the  present  discussion,  except  as  to  those  cases  where  the 
equitable  circumstances  were  not  acts  which  the  contract 
stipulated  should  be  done,  and  were  consequently  not  part- 
performance,  or  indeed  performance  at  all. 

§  458  a.  At  the  outset  it  should  be  observed  that  the  appli- 
cation of  the  rules  as  to  equitable  enforcement  must  to  a 
considerable  extent  be  governed  by  the  circumstances  of  each 
case.  As  has  been  well  said  in  a  recent  case  in  Minnesota, 
"the  courts  have  never  assumed  or  attempted  to  lay  down 
any  general  rule  as  to  what  would  or  would  not  constitute 
part-performance,  but  have  rather  contented  themselves  with 
applying  this  principle  to  the  facts  of  each  case,  by  which, 
under  a  gradual  process  of  inclusion  and  exclusion,  it  has 
been  determined  that  certain  states  of  facts  will  operate  as 
an  equitable  estoppel,  and  that  certain  others  will  not." 

§  459.  It  would  certainly  seem  that  where  a  party,  to 
whom  a  marriage  portion  has  been  promised,  actually  enters 
into  the  marriage  upon  the  faith  of  the  promise,  this  is  such 
a  change  of  condition  on  the  faith  of  the  agreement  as 
answers  all  the  requirements  of  courts  in  decreeing  specific 
performance.  But  it  appears  to  be  firmly  settled  that  the 
mere  marriage  will  not  be  sufficient.2  This,  as  Judge  Story 

1  See   Swain  ».  Seamens,  9  Wall.    (U.  S.)  254;  Neale  v.  Neales,  9 
Wall.    (U.   S.)   1 ;  Brown  v.  Hoag,  35  Minn.  373.     But  see  Wallace  v. 
Rappleye,  103  HI.  229. 

2  Montacute  v.  Maxwell   1  P.  Wms.  618;  Taylor  v.  Beech,  1  Ves.  Sr. 
297;  Dundas  p.   Dntens,  1  Ves.  Jr.    196;    s.  c.  2  Cox,  235;  Redding  v. 
Wilkes,  3  Bro.  C.  C.  400 ;  Story,  Eq  Jur.  §  768:  Finch  v.  Finch,  10  Ohio 
St.   501;  Caton  v.  Caton,  L.  R.  1  Ch.  App.  137;  Peek  v.  Peek.  77  Cal. 
106 ;  Richardson  v.  Richardson,  148  111.  563  ;  Richardson  v.  Richardson, 
45  111.  App.  Ct.  362. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  587 

says,  is  at  variance  with  the  rules  governing  other  cases  of 
contract,  and  is  to  be  treated  as  a  peculiar  case  standing  on 
its  own  grounds ; l  and  Vice  Chancellor  Malins  has  expressed 
his  regret  that  such  an  exception  was  ever  made.2  The 
argument  in  favor  of  it  has  been  that  "  marriage  is  necessary 
to  bring  the  case  within  the  statute,  and  to  hold  that  it  also 
takes  the  case  out  of  the  statute  would  be  a  palpable  absurd- 
ity," 8  and  that  "  such  agreements  are  always  performed  before 
they  become  the  subject  of  judicial  consideration,  and  so  no 
case  would  ever  be  within  the  statute,"  if  marriage  were 
held  to  be  part-performance.  But  is  this  so  ?  Suppose  a 
woman  agrees  to  marry  a  man,  on  the  faith  of  his  promise 
to  settle  her  property  to  the  use  of  her  own  family;  both 
sides  of  the  contract  executory ;  and  the  woman  marries 
him ;  it  is  hard  to  see  why  the  principle  of  part-performance 
as  a  doctrine  of  equity  should  not  cover  the  case.  In  a  case 
in  the  House  of  Lords,4  where  the  old  rule  that  marriage  was 
not  part-performance  was  in  terms  (though  unnecessarily) 
reasserted,  Lord  Cottenham  used  language  very  forcible 
showing  the  equitable  ground  for  the  contrary  opinion.  He 
said:  "The  principle  of  equity  is  this:  if  a  party  holds  out 
inducements  to  another,  clearly  and  deliberately,  and  the 
other  party  consents  and  celebrates  the  marriage  in  conse- 
quence of  them,  if  he  had  good  reason  to  expect  that  it  was 
intended  that  he  should  have  the  benefit  of  the  proposal 
which  was  so  held  out,  a  court  of  equity  will  take  care  that 
he  is  not  disappointed,  and  will  give  effect  to  the  proposal." 
§  459  a.  Where,  however,  there  is  not  only  a  marriage 
but  any  further  act  done,  in  reliance  upon  the  promise  sued 
upon,  there  a  claim  to  specific  execution  may  be  sustained.5 
Thus,  in  a  case  before  the  Lords  Justices,  it  was  held  that 

1  Eq.  Jur.  §  768. 

8  Ungley  v.  Ungley,  4  Ch.  Div.  73.     See  also  remarks  of  same  Judge 
in  Coles  v.  Pilkington,  L.  R.  19  Eq.  174. 
8  Caton  v.  Caton,  supra. 
4  Hammersly  v.  De  Biel,  12  Cl.  &  Fin.  45. 
6  Taylor  v.  Beech,  1  Ves.  Sr.  297;  Ungley  v.  Ungley,  4  Ch.  Div.  73. 


588  STATUTE   OF   FEAUDS.  [CH.    XIX. 

the  son-in-law  having,  after  the  marriage  and  with  the 
knowledge  of  the  father-in-law  and  without  objectipn  by  him, 
entered  upon  and  used  and  improved  premises  which  it  was 
verbally  proved  the  latter  had  said  he  intended  to  give  to 
him  and  his  wife,  a  case  of  part-performance  was  made  out, 
and  the  petition  of  the  administrator  of  the  father-in-law, 
for  payment  over  to  him  of  the  purchase-money  upon  a  sale 
of  the  premises  by  the  son-in-law  to  a  third  party,  was  dis- 
missed.1 So,  also,  where  an  intended  husband,  whose  wife 
was  to  receive  upon  her  marriage  a  large  settlement,  engaged 
by  the  same  agreement  to  settle  a  certain  jointure  upon  her, 
which  he  did  before  the  marriage  took  place,  both  Lord 
Cottenham  and  afterward  Lord  Campbell  and  Lord  Chan- 
cellor Lyndhurst  strongly  inclined  to  hold  it  a  sufficient  part- 
performance,  though  the  marriage  which  had  ensued  was  of 
itself  not  sufficient.  Upon  this  point,  however,  no  decision 
was  passed,  the  case  being  determined  upon  a  distinct 
ground.2 

§  460.  It  is  settled  that  acts  which  are  merely  preparatory 
or  ancillary  to  the  agreement  alleged  are  not  to  be  consid- 
ered as  part-performance.  Of  this  nature  are  the  following: 
delivering  abstracts  and  giving  directions  for  the  preparation 
of  conveyances,  or  even  the  solicitor's  taking  notes  and  pre- 
paring the  instrument,  going  to  view  the  estate,  fixing  upon 
appraisers  to  value  stock,  or  making  valuations,  measuring 
the  land,  executing  and  registering  conveyances  not  accepted 
by  the  purchaser,  etc.3  It  is  obvious  that  such  acts  as  these, 

1  Surcome  v.  Pinniger,  3  De  G.,  M.  &  G.  571 ;  explaining  Lassence  v. 
Tierney,  1  McN.  &  G.  551. 

2  Hammersly  v.  Baron  De  Biel,  12  Clark  &  F.  61,  where  Lord  (Totten- 
ham's opinion,  on  appeal  from  the  Rolls,  is  reported  ;  s.  c.  at  the  Rolls, 
nom.  De  Biel  v.  Thomson,  3  Beav.  469.     See  also  Caton  v.   Caton,  L.  R. 
1  Ch.  App.  137. 

8  Earl  of  Glengal  v.  Barnard,  1  Keen,  769;  Cooth  v.  Jackson,  6  Ves. 
12;  Clerk  v.  Wright,  1  Atk.  12;  Pembroke  v.  Thorpe,  cited  in  3  Swanst. 
437;  Thynne  r.  Earl  of  Glengal;  2  H.  L.  C.  131,  158;  Gratz  v.  Gratz,  4 
Rawle  (Pa.)  411;  Hawkins  v.  Holmes,  1  P.  "»Vn:s.  770;  Montacute  v. 
Maxwell,  1  P.  Wins.  618;  Popham  v.  Eyre,  Lofft,  786;  Whitchurch  v. 


CH.   XIX.]        VERBAL   CONRTACTS   ENFORCED   IN   EQUITY.  589 

though  tending  to  show  a  treaty  in  progress  between  the 
parties,  do  not  prove  any  agreement  executed  between  them, 
do  not  show  the  parties  in  a  position  different  from  that 
which  they  would  be  in,  according  to  their  legal  rights,  if 
there  were  no  contract  made.  And  so,  also,  where  the 
defendant  agreed  to  convey  land  to  the  plaintiff,  on  the 
latter's  procuring  a  release  from  a  stranger,  which  he  did 
procure  accordingly  and  paid  a  large  consideration  for  it,  it 
was  held  to  be  an  act  merely  preparatory  to  the  agreement 
and  no  part-performance.1  But  where  the  landlord  of  a  coal 
set,  having  four  tenants,  partners,  holding  under  a  lease  of 
which  there  were  several  years  to  run,  entered  into  an  agree- 
ment with  the  four  lessees  that  two  of  them  should  retire 
from  the  copartnership,  so  that  the  benefit  of  the  lease  and 
the  business  of  the  colliery  should  remain  to  the  other  two, 
and  that  on  this  being  done  he  would  grant  a  new  lease  at  a 
reduced  rent,  and  in  accordance  with  this  agreement  the  firm 
dissolved,  and  the  two  retiring  partners  released  their  inter- 
est therein,  it  was  considered  by  Sir  Knight  Bruce,  Vice 
Chancellor,  impossible  to  treat  these  acts  otherwise  than  as 
acts  of  part-performance,  taking  the  case  out  of  the  statute ; 
and  he  distinguished  the  case  from  that  last  quoted,  because 
there  the  release  procured  was  not  between  the  parties  to  the 
contract  which  was  sought  to  be  enforced,  and  the  procuring 
of  it  was  to  be  antecedent  to,  and  formed  no  part  of,  the 
execution  of  the  contract.2 

§  460  a.  As  the  remainder  of  the  discussion  of  the  doc- 
trine of  part-performance  will  be  concerned  exclusively  with 
cases  of  contracts  for  land,  this  may  be  a  convenient  place 
to  consider  the  question,  on  which  the  authorities  are  con- 

Bevis,  2  Bro.  C.  C.  559;  Redding  v.  Wilkes,  3  Bro.  C.  C.  400;  Givens 
v.  Calder,  2  Desaus.  (S.  C.)  Ch.  171  ;  Reeves  v.  Pye,  1  Cranch  (C.  C.) 
219;  Colgrove  v.  Solomon,  34  Mich.  494.  Compare  Whaley  r.  Bagnel, 
1  Bro.  P.  C.  345. 

1  O'Reilly  v.  Thompson,  2  Cox,  271 :  Lydick  v.  Holland,  83  Mo.  703 
Post,  §  463. 

a  Parker  v.  Smith,  1  Coll.  Ch.  60S. 


590  STATUTE  OF  FEAUDS.  [CH.   XIX. 

flicting,  whether  that  doctrine  really  has  any  proper  applica- 
tion to  any  contracts  other  than  contracts  for  land.  It  is 
manifest  that  these  are  not  the  only  contracts  included 
within  the  provisions  of  the  Statute  of  Frauds  which  in  their 
nature  admit  of  part-performance.  There  may  be  part-per- 
formance of  an  agreement  not  to  be  performed  within  a  year, 
or  of  an  agreement  in  consideration  of  marriage.  While 
the  marriage  alone,  as  we  have  already  seen, 1  is  not  regarded 
as  an  act  of  part-performance  which  entitles  the  party  marry- 
ing to  a  decree  in  equity  for  specific  execution ;  other  acts 
done  upon  the  faith  of  the  marriage  contract  have  been  held 
in  England  to  be  acts  of  part-performance  entitling  the  party 
doing  them  to  such  a  decree ; 2  but  in  view  of  more  recent 
cases,  it  must  be  taken  now  as  settled  in  England  that  the 
doctrine  of  part-performance  has  no  application  except  to 
contracts  for  land.3  In  a  suit  in  equity  to  compel  account 
of  the  profits  of  a  concern,  a  certain  share  of  which  profits 
to  be  earned  in  a  term  outrunning  one  year  was  the  verbally 
agreed  consideration  for  services  which  had  been  rendered 
by  the  plaintiff,  the  Supreme  Court  of  New  Jersey  refused 
even  to  receive  evidence  of  the  profits  to  ascertain  the  value 
of  the  services,  and  refused  also  to  recognize  the  rendering 
of  the  services  as  an  act  of  part-performance,  saying  that  the 
doctrine  of  part-performance  "  applies  only  to  contracts  relat- 
ing to  lands  "  and  does  not  extend  to  contracts  relating  to 
other  matters.4  As  a  matter  of  principle,  having  regard  to 
the  substance  of  that  doctrine,  which  is  that  when  one  party 
has  so  changed  his  situation  as  to  the  subject-matter  of  the 
agreement  on  the  faith  of  the  agreement,  that  the  refusal  of 

1  Ante,  §  459. 

2  Hammersly  v.  De  Biel,  12  Clark  &  Finnelly,  45 ;  Surcome  v.  Pin- 
niger,  3  De  G.,  M  &  G.  571. 

«  Britain  v.   Rossiter,   11  Q.  B.  Div.  123;  Maddison  v.  Alderson,  8 
App.  Gas.  474. 

*  McElroy  v.  Ludlum,  32  N.  J.  Eq.  828.  See  also  Wheeler  ».  Frank 
enthal,  74  111.  124;  Osborn  v.  Kimball,  41  Kansas,  187;  Equitable  Co  v 
Baltimore  Co.,  63  Md.  285. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  591 

the  other  party  to  carry  it  out  would  inflict  upon  him  an 
unjust  and  unconscientious  injury  and  loss,  equity  will  not 
permit  the  Statute  of  Frauds  to  be  set  up  in  aid  of  the 
refusal,  there  seems  to  be  no  reason  for  limiting  the  opera- 
tion of  the  doctrine  to  any  particular  class  of  contracts 
included  within  the  statute. 

§  461.  It  was  originally  held  that  payment  of  the  whole  or 
of  a  considerable  part  of  the  purchase -money,  upon  a  verbal 
contract  for  real  estate,  was  such  a  part-performance  as  en- 
titled the  party  making  it  to  a  decree  for  the  specific  execu- 
tion of  the  contract,  while,  at  the  same  time,  payment  of  a 
small  part  was  not  held  sufficient.1  The  entire  unsoundness 
of  such  a  discrimination  as  to  the  amount  paid  is  now,  how- 
ever, generally  conceded.  The  objections  to  it  are  stated, 
with  his  usual  force  and  clearness,  by  Sir  Edward  Sugdeu, 
thus:  "To  say  that  a  considerable  share  of  the  purchase- 
money  must  be  given,  is  rather  to  raise  a  question  than  to 
establish  a  rule.  What  is  a  considerable  share,  and  what  is 
a  trifling  sum  ?  Is  it  to  be  judged  of  upon  a  mere  statement 
of  the  sum  paid,  without  reference  to  the  amount  of  the  pur- 
chase-money? If  so,  what  is  the  sum  that  must  be  given  to 
call  for  the  interference  of  the  court  ?  What  is  the  limit  of 
the  amount  at  which  it  ceases  to  be  trifling,  and  begins  to  be 
substantial  ?  If  it  is  to  be  considered  with  reference  to  the 
amount  of  the  purchase-money,  what  is  the  proportion  which 
ought  to  be  paid  ?  "  2  And  now,  by  an  unbroken  current  of 
authorities,  running  through  many  years,  it  is  settled  too 
firmly  for  question,  that  payment,  even  to  the  whole  amount 
of  the  purchase-money,  is  not  to  be  deemed  such  part-per- 

% 

1  Lacon  v.  Mertins,  3  Atk.  1;  Skett  v.  Whifcmore,  Freem.  Ch.  280; 
Owen  r.  Davies,  1  Ves.  Sr.  82  ;  Hales  ».  Van  Bercliem,  2  Vern.  617 ; 
Main  v.  Melbourn,  4  Ves.  720,  and  Dickenson  v.  Adams,  there  cited.    See 
also  Jones  v.  Peterman,  3  Serg.  &  R.  (Pa.)  543  ;  Hardcsty  p.  Jones,  10 
Gill  &  J.  (Md.)  404;  Frieze  v.  Glenn,  2  Md.  Ch.  Dec.  361  ;  Rawlins  v. 
Shropshire,  45  Ga.  182;  Castleman  v.  Sherry,  42  Tex.  59. 

2  Treatise  on  Vendors  and  Purchasers,  168.     And  see  1  Burton,  Caa. 
&  Opin.  136.     Story  Eq.  Jur.  §  760. 


592  STATUTE   OF  FRAUDS.  [CH.   XIX. 

formance  as   to  justify  a  court   of  equity  in  enforcing  the 
contract.1 

§  462.  Nevertheless,  it  is  important  to  notice  with  some 
particularity  the  grounds  on  which  these  authorities  rest. 
One  reason  which  is  assigned,  and  that  which  was  said  by 
Lord  Redesdale  to  be  the  great  reason,  why  payment  is  not 
to  be  deemed  part-performance,  is  that  the  framers  of  the 
statute  having  expressly  provided  that  payment  in  whole  or 
in  part  shall  be  sufficient  to  exempt  from  its  operation  a 
contract  for  the  sale  of  goods,  wares,  or  merchandise,  they 
must  be  presumed  to  have  intended  that  it  should  not  be 
sufficient  in  cases  of  contracts  for  lands,  no  such  provision 
in  favor  of  the  latter  occurring  in  the  statute.2  And  upon 
this  view,  among  others,  the  Court  of  Appeals  of  Delaware 
have  decreed  execution  of  a  verbal  contract  for  land,  where 
part  of  the  purchase-money  has  been  paid;  the  Statute  of 
Frauds  in  that  State,  as  it  then  stood,  not  presenting  any 
such  difference  between  the  two  sections.3  But  it  may  be 
remarked  that  by  the  seventeenth  section  of  the  English 
statute,  part-payment  is  made  a  substitute  for  the  written 
memorandum;  whereas  courts  of  equity,  as  we  have  before 
noticed,  never  regard  acts  of  part-performance  in  that  light, 
but  as  demanding  from  them  the  application  of  certain  rules 
which  are  of  paramount  force  in  their  jurisdiction,  and  which 
override  the  statute  altogether. 

1  Temple  v.  Johnson,  71  111.  13;  Glass  v.  Hulbert,  102  Mass.  28;  Wood 
v.   Jones,  35  Tex.   64.     But  otherwise  in  Iowa  by  its  statute.     Stern  v. 
Nysonger,   69   Iowa,   512.     Carlisle  v.   Brennan,  67  Ind.   12;    Green   v. 
Groves,  109  Ind.  519  ;  Townsend  v.  Fenton,  30  Minn.  528 ;  Webster  v. 
Blodgett,  59  N.  H.  120 ;  Price  v.  Price,  17  Fla.  605 ;  Neal  v.  Gregory,  19 
Fla.  356  :  Humbert  v.  Brisbane,  25  S.  C.  506  ;  Ward  v.  Stuart,  62  Texas, 
333  ;  Guthrie  v.  Anderson,  47  Kansas,  383;  Maxfield  v.  West,  6  Utah, 
327 ;  Boulder  Valley  Co.  v.  Farnham,  12  Mont.  1 ;  Crabill  v.  Marsh,  38 
Ohio  St.  331;   Townsend  v.  Vandenwerker,  20  D.  of  C.  197;    Miller  v. 
Lorentz,  19  S.  E.  Rep.  (W.  Va.)  391. 

2  Clinan  v.  Cooke,  1  Schoales  &  L.  22  ;  Lord  Pengall  v.  Ross,  2  Eq. 
Cas.  Abr.  46;  Lanew.  Schackford,  5  N.  H.  130  ;  Baker  v.  Wiswell,  17  Neb. 
52. 

8  Townsend  v.  Houston,  1  Harr.  532;  Houston  v.  Townsend,  1  Del. 
Ch.  416. 


CH.  XIX.]   VERBAL  CONTRACTS  ENFORCED  IN  EQUITY.      593 

§  463.  Another  view  is,  that  payment  is  not  part-perform- 
ance, because  nothing  is  to  be  so  regarded  which  does  not 
put  the  party  performing  it  in  such  a  position  that  a  fraud 
will  be  allowed  to  be  practised  upon  him  if  the  contract  is 
not  enforced.  And  this  is  the  view  which  is  now  generally 
adopted,  and  to  which  Mr.  Justice  Story  gives  his  approba- 
tion. l  The  money,  it  is  said,  may  be  recovered  back  by 
action,  and  the  parties  restored  to  their  original  position. 
If,  from  the  nature  of  the  payment,  or  the  peculiar  circum- 
stances of  the  case,  this  cannot  be  done,  this  rule  would  seem 
to  fail  with  the  reason  of  it.  Thus  an  agreement  by  one, 
who  was  himself  helpless  from  disease,  to  convey  a  piece  of 
land  to  another,  in  consideration  of  being  provided  for  and 
taken  care  of  during  his  lifetime,  has  been  enforced,  in  New 
York,  against  the  heirs-at-law  of  the  former;  the  court 
remarking  that  the  rule  applied  to  a  money  consideration 
only,  and  that  where,  as  here,  the  services  were  of  such  a 
peculiar  character  that  it  was  impossible  to  estimate  their 
value  to  the  recipient  by  any  pecuniary  standard,  and  where 
it  was  evident  that  they  were  not  intended  to  be  so  measured, 
it  was  out  of  the  power  of  any  court,  after  the  performance 
of  the  services,  to  restore  the  complainant  to  the  situation 
in  which  he  was  before  the  contract  was  made,  or  to  com- 
pensate him  in  damages.2  And  so,  also,  where  the  com- 
plainant has  not  paid  his  money,  but  has  involved  himself  in 

1  Story,  Eq.  Jur.  §  761. 

2  Rhodes  v.  Rhodes,  3  Sandf.  (N\  Y.)  Ch.  279.    See  Watson  v.  Mahan, 
20  Ind.  223;  Davison  v.  Davison,  13  N.  J.  Eq.  246  ;  Gunton  v.  Gupton. 
47  Mo.  37;  Webster  v.  Gray,  37  Mich.  37;  Franklin  v.  Tnckerman,  68 
Iowa,  572  ;  Crabill  v.  Marsh,  38  Ohio  St.  331 ;  Howard  v.  Brower,  37  Ohio 
St.  402 ;  Phlugar  v.  Pulz,  43  X.  J.  Eq.  440.     But  see   Snman  v.  Sprin- 
gate,  67  Ind.  115;  Wallace  v.  Long,  105  Ind.  522;  Austin   v.   Davis,  128 
Ind.  472;  Hershman  v.  Pascal,  4  Ind.  App.  Ct.  330.     A  similar  point  was 
raised  in  argument  by  Sir  Samuel  Romilly,  as  early  as  the  case  of  Buck- 
master  v.  Harrop,  13  Ves.  456.     The  payment  there,  however,  was  of  the 
auction  duty,  and  Lord  Chancellor  Erskine,  admitting  that  the  duty  could 
not  be  recovered  back,  held  that  the  payment  was  not  to  be  taken  as  an 
act  of  part-performance,  because  it  was  required  to  be  made,  whether 
there  was  any  effectual  contract  or  not. 

38 


594  STATUTE   OF   FRAUDS.  [CH.    XIX. 

transactions  including  the  contract  in  question,  and  upon 
the  strength  of  it,  from  which  he  cannot  retire  without  a 
damage,  which  would  not  be  compensated  by  mere  repay- 
ment, the  highest  court  in  the  same  State  has  decreed  the 
contract  to  be  specifically  executed.1 

1  Malins  v.  Brown,  4  N.  Y.  403;  German  v.  Machin.  6  Paige  Ch.  288. 
See  also  Dugan  v.  Gittings,  3  Gill  (Md.)  138;  Gosden  v.  Tucker,  6  Munf. 
(Va.)  1;  Johnson  v.  Hubbell,  2  Stock.  (N.  J.)  332.  Ante,  §  460.  The 
rule  stated  in  the  text  is  supported  by  the  following  cases  also:  Phlugar 
v.  Pulz,  43  N.  J.  Eq.  440 ;  Warren  v.  Warren,  105  111.  568 ;  Kenyon  v. 
Youlan,  53  Hun  (N.  Y.)  592;  Matthews  v.  Matthews,  62  Hun  (N.  Y.) 
110 ;  Van  Dyre,  3  Stock.  (N.  J.)  370 ;  Sharkey  v.  McDermott,  91  Mo. 
647;  Fuchs  v.  Fuchs,  48  Mo.  App.  18;  Ruggles  v.  Emery,  14  Sup.  Ct. 
Rep.  1083  ;  Ford  v.  Steele,  31  Neb.  521.  But  in  the  recent  case  of 
Wallace  v.  Long,  105  Ind.  5:22  the  Supreme  Court  of  Indiana  have 
decided  to  the  contrary.  The  facts  were  that  a  childless  husband  and 
wife,  in  consideration  that  a  young  girl  should  live  with  them  until  the 
death  of  either  of  them  and  of  the  survivor,  in  all  respects  as  their  child, 
rendering  them  such  service  as  she  could,  verbally  promised  to  give  her  by 
will  at  their  death  the  whole  estate,  which  included  land  and  more  than 
fifty  dollars'  worth  of  personalty ;  it  was  held  that  the  Statute  of  Frauds 
applied,  and  that  the  verbal  promise,  notwithstanding  performance  by 
the  girl,  could  not  be  enforced.  See  also  Maddison  v.  Alderson,  8  App. 
Gas.  467,  disapproving  Loffus  v.  Maw,  3  Giff.  592;  Nelson  v.  Masterton, 
2  Griffith  (Ind.)  5'24;  Grant  v.  Grant,  63  Conn.  530  and  cases  cited; 
Baldwin  v.  Squier,  31  Kansas,  283.  The  case  of  Brown  r.  Sutton,  129 
U.  S.  238,  is  peculiar.  In  that  case  the  facts  were  that  in  consideration 
of  the  plaintiff's  living  with  the  defendant  and  his  wife  and  taking  care 
of  them  until  their  death,  the  defendant  agreed  to  buy  land  and  build  a 
house  on  it  larger  than  was  necessary  for  the  three,  and  made  larger  for 
the  purpose  of  enabling  the  plaintiff  to  keep  boarders  therein  ;  and  the 
land  was  bought  and  the  house  built  accordingly,  and  the  plaintiff  put 
into  possession.  The  Court  said  :  "  There  can  be  little  doubt  that  the 
delivery  of  possession  to  the  Suttons,  and  the  construction  of  this  house 
under  their  direction  and  control,  is  a  sufficient  part-performance  to  take 
the  case  out  of  the  Statute  of  Frauds  ;  "  and  the  decree  accordingly  was 
affirmed.  No  cases  are  cited.  In  the  case  of  Manck  v  Melton,  64  Indi- 
ana, 414,  where  the  verbal  promise  was  to  convey  or  devise  lands  to 
promisee,  in  consideration  of  promisee's  boarding  and  caring  for  him 
during  his  life,  and  the  promisee  was  put  in  possession,  and  also  made 
valuable  improvements  upon  the  property,  the  case  was,  with  more 
reason,  it  would  seem,  held  to  be  taken  out  of  the  statute  by  the  prom- 
isee's acts  in  part-performance  of  the  contract.  The  difficulty  with  the 
decision  in  Brown  v.  Sutton  is  that  the  possession  was  no  more  by  one 


CH.  XIX.]   VERBAL  CONTRACTS  ENFORCED  IN  EQUITY.      595 

§  464.   In  such  cases  us  these,  it  will  be  observed,  the  con- 
tract is  originally  so  made  that  the  payment  provided  for 

party  than  the  other,  as  they  all  occupied  together.  (See  post,  sections 
474,  476.)  In  the  case  of  Harbour  v.  Barbour,  49  N.  J.  Eq.  429,  a  hus- 
band, against  whom  his  wife  had  filed  a  petition  for  divorce  on  the 
ground  of  adultery,  asking  for  alimony  and  counsel  fees,  entered  into  an 
agreement  with  his  wife  by  which  he  promised  that  if  she  would  dismiss 
her  suit  and  return  to  him  and  live  with  him  as  his  wife,  he  would 
execute  and  deliver  to  her  a  deed  for  the  house  and  lot  in  and  upon  which 
they  had  been  living,  and  she  accepted  his  offer,  dismissed  her  suit,  and 
returned  to  her  home  in  good  faith.  He  was  required  to  specifically 
perform.  In  Murphy  r.  Whitney,  69  Hun  (N.  Y.)  573,  there  was  an 
agreement  between  parties  owning  an  e^ate,  that  it  should  be  held  in 
common  for  the  joint  use  of  all,  as  from  time  to  time  they  might  be 
living,  and  that  on  the  decease  of  any  of  them,  his  or  her  interest  was  to 
vest  in  the  survivors,  until  the  title  was  concentrated  in  the  last  survivor, 
on  whose  death  it  should  pass  to  the  plaintiff.  This  agreement  was  re- 
spected by  the  brothers  and  sisters,  who  by  deeds  and  wills  conveyed  and 
devised  their  interests  to  each  other,  until  all  had  died  but  one  sister. 
She,  being  old  and  feeble,  was  induced  by  the  other  defendants  to  convey 
the  property  to  them  without  consideration.  Held,  that  she  could  not  be 
compelled  to  convey  or  devise  to  the  plaintiff  the  undivided  share  of  the 
estate  owned  by  her  as  a  tenant  in  common  with  her  brothers  and 
sisters ;  but  that  as  to  the  remainder,  as  to  which  the  agreement  had 
been  executed  by  the  other  tenants  in  common  by  conveying  and  deliv- 
ering their  shares  to  her,  she  would  not  be  permitted  to  repudiate  the 
agreement  under  which  she  had  taken  title,  as  such  repudiation  would  be 
a  fraud  upon  all  her  deceased  brothers  and  sisters  ;  and  that  on  her  death, 
such  shares  should  go  to  the  plaintiff ;  and  there  was  a  decree  establishing  the 
trust  and  setting  aside  the  conveyance  to  the  other  defendants.  (Affirmed 
in  Murphy  r.  Whitney,  140  N.  Y.  541.)  Compare  with  this  Graves  v. 
Goldthwait.  153  Mass.  268,  where,  on  a  bill  in  equity  for  specific  per- 
formance, it  appeared  that  the  plaintiff  and  her  six  sisters,  including  the 
defendant,  all  of  whom  were  tenants  in  common  of  several  parcels  of  land, 
made  an  oral  agreement,  by  which  the  plaintiff  was  to  pay  to  each  a  fixed 
sum,  and  they  were  to  convey  to  her  their  right  and  title  in  and  to  one 
parcel,  on  which  the  plaintiff  resided ;  and  after  three  of  them  had  conveyed 
to  her  their  respective  interests,  and  each  had  received  the  sum  agreed,  she 
offered  the  same  amount  to  the  defendant,  requesting  a  release,  which 
was  refused  ;  that  thereafter,  and  before  the  bill  was  brought,  the  other 
two  released  their  rights  to  her.  in  accordance  with  the  agreement;  and 
that  the  defendant  offered,  for  the  protection  of  the  plaintiff's  title,  to 
surrender  any  claim  she  might  have  to  avoid  the  conveyances  made  to 
her  by  the  other  sisters  of  their  respective  fractions  of  the  parcel  in  ques- 
tion, and  to  recognize  their  validity.  Held,  that  any  injury  that  might 


596  STATUTE   OF  FRAUDS.  [CH.    XIX. 

cannot  be  satisfactorily  returned ;  and  so  it  is,  in  effect,  a 
fraud  in  the  defendant  to  repudiate  the  contract  The  case 
seems  to  be  different  where,  a  mere  money  consideration  hav- 
ing been  originally  provided  for,  the  defendant  has  become 
bankrupt  or  otherwise  unable  to  return  it.  Here  there  is  no 
such  fraud  in  the  transaction  on  his  part  as  would  justify 
equitable  interference.1 

§  465.  Although  payment  alone  is  not  sufficient,  yet  it 
may  serve  to  corroborate  other  acts  which  are  generally 
regarded  as  amounting  to  part-performance,  so  as  to  afford 
ground  for  a  decree  of  specific  execution.  Where,  for  in- 
stance, it  is  accompanied  by  a  purchaser's  entering  into  pos- 
session of  land  in  pursuance  of  a  verbal  contract  for  the 
purchase  of  it,  a  case  for  specific  performance  is  commonly 
considered  to  be  shown.2  And  this  leads  us  to  some  impor- 

result  to  the  plaintiff  by  a  failure  of  the  defendant  to  carry  out  her  agree- 
ment was  insufficient  to  take  the  contract  out  of  the  Statute  of  Frauds  ; 
and  that  the  bill  must  be  dismissed. 

1  On  this  point  compare   §  760  and  §  761  of  Story,  Eq.  Jur.     See 
Townsend  ».  Fenton,  32  Minn.  482. 

2  See,  in  addition  to  those  cited  hereafter  under  the  head  of  taking  or 
giving  possession,  the  following  cases:  Wilkinson  v.  Scott,  17  Mass.  249; 
Sutton  v.  Sutton,  13  Vt.  71;  Davis  c.   Townsend,  10  Barb.  (X.  Y.)  333; 
Gilday  r.  Watson,  2  Serg.  &  R.  (Pa.)  407;  Green  wait  v.   Homer,  6  Serg. 
&  R/(Pa.)  71;  Billington  v.   Welsh,  5  Binn.  (Pa.)  129;  Dugan  v.  Git- 
tings,  3  Gill  (Md.)  138:  Drury  v.  Conner,  6  Harr.  &  J.  (Md.)  288;  Moale 
v.  Buchanan,  11  Gill  &  J.  (Md.)  314;  Woods  v.  Farmare,  10  Watts  (Pa.) 
195;  Follmer  v.  Dale,  9  Pa.  St.  83;  Tibbs  v.  Barker,  1  Blackf.  (Ind.)  58; 
Williams  c.  Pope,  Wright  (Ohio)  406;  Kelley  v.  Stanbery,  13  Ohio,  408  ; 
Shirley  v.   Spencer,  4  Gilm.  (111.)  583;  Thornton  v.  Vaughan,  2  Scam. 
(111.)  218;    Hawkins  v.   King,   2   A.   K.   Marsh.  (Ky.)  548;   Brewer  ». 
Brewer,  19  Ala.  481  ;  Wible  v.  Wible,  1  Grant  (Pa.)  406 ;  Jones  v.  Pease, 
21   Wise.    644;  Fitzsimmons  v.   Allen,  39  111.  440;  Holmes  ?•.  Carlen,  57 
Vt.  Ill;  Hunt  v.  Hayt,  10  Col.  278;  Holmden  v.  Janes,  42  Kansas  758; 
Bechtel  r.  Cone,   52  Md.   698;    McWhinne  v.    Martin,    77    Wise.    182; 
McDowell  v.  Lucas,  97  111.  489  ;  McXamara  v.   Garrity,    106  111.  384  ; 
Whitsitt  ".  Trustees  Presbyterian  Church,  110  111.  125  ;  Smith  v.  Yocum, 
110  III.   142;  Gorham  v.   Dodge,  122  111.  528;  Nibert  v.  Baghurst,  47 
N.  J.   Eq.  201;  Price  r.  Bell,  91  Ala.  180;  Spies  r.   Price,  91  Ala.   166; 
Gould  r.  Elgin  City  Banking  Co.,  136  111.  60;  Hall  v.  Peoria  &  Eastern 
R.  R..  143  111.  163 ;  Manning  ».  Pippen,  95  Ala.  537  j  Watts  v.  Witt,  39 
S.  C.  356. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  597 

tunt  considerations  upon  the  taking  or  delivering  of  posses- 
sion as  an  element  of  such  a  case. 

§  466.  It  has  been  said  that  nothing  was  to  be  considered 
part-performance  of  a  contract  for  land,  which  did  not  include 
a  change  of  possession  in  the  land ; l  but  this  would  seem  to 
be  a  merely  arbitrary  proposition,  for  there  may  be,  obvi- 
ously, many  acts  done  by  the  vendor  or  purchaser  under  such 
a  contract,  which  would,  from  their  irrevocable  character, 
and  from  the  situation  in  which  they  would  leave  the  party 
performing,  demand  the  specific  enforcement  of  the  contract.2 

§  467.  It  is,  however,  well  settled,  that  possession  alone, 
without  payment  or  other  acts  of  ownership,  is  sufficient 
part-performance  of  a  verbal  contract  for  land  to  sustain  a 
decree  for  its  specific  execution.3  Such  is  declared  to  be  the 

1  M'Kee  v.   Phillips,  9  Watts  (Pa.)  85;  M'Farland  v.  Hall,  3  Watts 
(Pa.)  37  ;  Peifer  v.  Landis,  1  Watts  (Pa.)  392 ;  Ackerman  v.  Fisher,  57 
Pa.  St.  457 ;  Wallace  v.  Long,  105  Ind.  522 ;  Bowers  v.   Bowers,  95  Pa. 
St.  477. 

2  Hollis,  v.  Edwards  (and   Deane  v.  Izard),   1  Vern.  159;  Mundy  v. 
Jolliffe,  5  Mylne  &  C.  167;  Slingerland  v.  Slingerland,  39  Minn.  197; 
Gulley  v.  Macy,  84  N.  C.  434.     Ante,  §  463. 

8  1  Powel  on  Contracts,  299 ;  Newland  on  Contracts,  181  ;  Sugden, 
Vend.  &  P.  105  ;  1  Fonbl.  175 ;  1  Madd.  Ch.  303  ;  Roberts  on  Frauds, 
147  ;  4  Kent  Com.  451  ;  Story,  Eq.  Jur.  §  761 ;  Butcher  v.  Stapely,  1  Vern. 
363 ;  Seagood  v.  Meale,  Finch.  Prec.  Ch.  560  ;  Lacon  v.  Merlins,  3  Atk. 
1;  Boardman  r.  Mostyn,  6  Ves.  467;  Coles  v.  Pilkington,  L.  R.  19  Eq. 
174;  Ungley  r.  Ungley,  4  Ch.  Div.  73;  Hunt  v.  Wimbledon  Local  Board, 
4  C.  P.  Div.  48;  Maddison  v.  Alderson,  L.  R.  8  H.  L.  C.  467;  per 
Blackburn,  J.  at  489;  Rapley  v.  Klugh,  18  S.  E.  Rep.  (S.  C.)  680; 
Eaton  v.  Whitaker,  18  Conn.  222;  Harris  v.  Crenshaw,  3  Rand.  (Va.) 
14;  Murray  v.  Jayne,  8  Barb.  (X.  Y.)  612;  Anderson  v.  Simpson,  21 
Iowa,  399;  Arrington  ».  Porter,  47  Ala.  714  :  Pindall  v.  Trevor,  30  Ark. 
249  ;  Wells  v.  Stratton,  1  Tenn.  Ch.  328.  Ante,  §§  74,  76.  Quo-re  as  to 
this,  however,  in  Maryland.  Shepherd  v.  Shepherd,  1  Md.  Ch.  Dec.  244 ; 
Owings  v.  Baldwin,  8  Gill,  337;  Morris  v.  Harris,  9  Gill,  19.  And  Mas- 
sachusetts :  Glass  v.  Hulbert,  102  Mass.  32.  And  Illinois :  Cloud  ». 
Greasley,  125  111.  313;  Ferbrache  v.  Ferbrache,  110  111.  210.  See  Rey- 
nolds v.  Johnston,  13  Tex.  214;  Danforth  v.  Laney,  28  Ala.  274;  Carroll 
v.  Powell,  48  Ala.  298;  Pindall  v.  Trevor,  30  Ark.  249 ;  Catlett  v.  Bacon, 
33  Miss.  269.  See  Eshleman  v.  Henrietta  Vineyard  Co.,  36  Pac.  Rep. 
(Cal.)  775;  Eberly  v.  Lehman,  100  Pa.  St.  542;  Wigpin  r.  Wiggin,  58 
X.  II.  235;  Southmayd  P.  South m ay d,  4  Montana,  100;  Hanlon  v.  Wilson, 


598  STATUTE    OF   FRAUDS.  [CH.    XIX. 

law  also  in  Pennsylvania,  and  equally  so  in  that  State,  not- 
withstanding the  absence  from  its  legislation  of  the  fourth 
section  of  the  statute  of  Charles  at  the  time  of  such  deci- 
sions.1 In  the  case  of  a  parol  gift  of  land,  however,  some- 
thing more  seems  to  be  required  than  the  mere  taking 
possession;  as,  for  instance,  the  expenditure  of  money  upon 
the  estate,  or  the  rendering  of  service  by  the  donee,  upon 
the  faith  of  the  gift.2 

§  468.  The  subject  of  possession  under  a  verbal  contract 
for  land  is  to  be  regarded  from  two  points  of  view :  the  one 
where  the  purchaser  relies  upon  it  as  taken  by  him,  and  the 
other  where  the  vendor  relies  upon  it  as  delivered  by  him,  in 
pursuance  of  the  contract.3 

§  469.  Where  the  purchaser  goes  into  possession,  and  rests 
upon  that  act  his  claim  for  the  specific  execution  of  the  con- 
tract, one  reason  assigned  for  allowing  that  claim  is,  that  if 

10  Neb.  138;  Wallace  v.  Scoggins,  17  Oregon,  476;  Rosenberger  r.  Jones, 
118  Mo.  559 ;  Puterbaugh  v.  Puterbaugh,  131  Ind.  288 ;  Burns  o.  Daggett, 
141  Mass.  368. 

1  Pugh  ».   Good,  3  Watts  &  S.  56,  a  decision  of  great  fulness  and 
learning;  see,  however,  Moore  v.  Small,  19  Pa.   St.  461;  McKowen  v. 
McDonald,  43  Pa.  St.  441.    See  also  Ebert  v.  Wood,  1  Binn.  216 ;  Bassler 
r.  Niesly,  2  Serg.  &  R.  352;  Jones  v.  Peterman,  3  Serg.  &  R.  543;  Miller 
v.   Hower,   2  Rawle,  53 ;  Stewart  v.   Stewart,  3   Watts,  253 ;  Rhodes  v. 
Frick,  6  Watts,  315;  Johnston  v.  Johnston,  6  Watts,  370;  Woods  r.  Far- 
mare,  10  Watts,  195  ;  Reed  v.  Reed,  12  Pa.  St.  117.     The  rule  in  Penn- 
sylvania has  been  changed  from  that  stated  in  the  text,  but  it  is  not 
clear  what  the  present  rule  is  in  that  State.     See  Anderson  v.  Brinser, 
129  Pa.  St.  376 ;  Simmons'  Estate,  140  Pa.  St.  567. 

2  Stewart  v.  Stewart,  3  Watts  (Pa.)  253.     And  see  Young  v.  Glenden- 
ning,  6  Watts  (Pa.)  509  ;  Syler  r.  Eckhart,  1  Binn.  (Pa  )  378  ;  Bright  v. 
Bright,  41   111.   97  ;  Guynn  v.   McCauley,  32  Ark.  97 ;  Shellhammer  e. 
Ashbaugh,  83  Pa.  St.  24 ;  Sower  v.  Weaver,   84  Pa.    St.  262 ;  Ballard 
v.  Ward,  89  Pa.  St.  358 ;  Poorman  v.  Kilgore,  26  Pa.   St.  365 ;  Harris  v. 
Richey,  56  Pa.  St.  395;  Anson  v.  Townsend,  73  Cal.  415;  Xeukirkr.  Mar- 
shall, 35  Kansas,  77;  Ballard  v.  Ward,  89  Pa.  St.  358  ;  Brown  v.  Sutton, 
129  U.   S.  238;  Story  v.  Black,  5  Montana,  26  ;  Dickerson  v.   Colgrave, 
100  U.  S.  583;  Galbraith  v.  Galbraith,  5  Kans.  241. 

8  Tender  of  a  deed  is  not  sufficient  delivery  to  be  a  ground  for  a  decree 
for  specific  performance.  Graham  v.  Theis,  47  Ga.  479;  Sands  v.  Thomp- 
son, 43  Ind.  18. 


CH.    XIX.]       VERBAL  CONTRACTS   ENFORCED   IN   EQUITY.  599 

there  be  no  agreement  valid  in  law  or  in  equity,  he  is  made 
a  trespasser  and  is  liable  as  a  trespasser ;  a  position  which 
would  amount  to  a  fraud  practised  upon  him  by  the  vendor. 1 
"Now,  "says  Mr.  Justice  Story,  "for  the  purpose  of  defending 
himself  against  a  charge  as  a  trespasser,  and  a  suit  to  account 
for  the  profits  in  such  a  case,  the  evidence  of  a  parol  agree- 
ment would  seem  to  be  admissible  for  his  protection ;  and  if 
admissible  for  such  a  purpose,  there  seems  to  be  no  reason 
why  it  should  not  be  admissible  throughout."2 

§  470.  If  the  rule  in  question  were  not  so  firmly  estab- 
lished, it  might  be  a  most  pertinent  inquiry,  whether  it 
necessarily  follows  that  a  fraud  is  practised  upon  the  pur- 
chaser unless  the  verbal  agreement  be  valid  in  law  or  in 
equity,  and  whether  it  is  a  sound  reason  for  holding  it  valid 
for  all  purposes,  that  evidence  of  it  is  admissible  to  repel 
the  vendor's  claim  in  trespass.  To  apply  the  forcible  reas- 
oning of  one  of  our  judges,  "Seeing  the  English  act  ... 
gave  to  the  party  put  into  possession  under  the  parol  con- 
tract for  the  purchase  of  the  land  in  fee,  an  implied,  at  least, 
if  not  an  express  estate  at  will,  which  was  sufficient  to  pre- 
vent his  being  made  a  trespasser  until  the  vendor  entered 
upon  him  and  gave  him  notice  to  quit,  it  is  difficult  to 
imagine  why  it  should  have  been  deemed  necessary  to  carry 
the  contract  into  complete  execution  in  order  to  protect  the 
vendee  from  being  punished  as  a  trespasser  for  having  entered 
and  occupied  the  land  before  he  had  notice  to  quit. "  3  The 
Supreme  Court  of  Massachusetts  also  has  strongly  intimated 
that  specific  performance  will  not  be  decreed  in  that  court, 
unless  some  stronger  equity  than  that  arising  from  possession 
merely  can  be  shown.* 

1  Lockey  v.  Lockey,  Finch,  Free.  Ch.  518;  Clinan  v.  Cooke,  1  Schoales 
&  L.  22  ;  Lord  Pengall  v.  Ross,  2  Eq.  Cas.  Abr.  46;  Underbill  ».   Wil- 
liams, 7  Blackf.  (Ind.)  125;  Smith   v.  Smith,  1  Rich.  (S.  C.)  Eq.  130; 
Story,  Eq.  Jur.  §  761 ;  Ham  v.  Goodrich,  33  N.  H.  32  ;  Coney  v.  Timmons, 
16  S.  C.  378. 

2  Story,  Eq.  Jur.  §  761. 

«  Kennedy,  J..  in  Allen's  Estate,  1  Watts  &  S.  (Pa.)  387. 
4  Glass  v.  Hulbert,  102  Mass.  32. 


600  STATUTE    OF   FRAULS.  [CH.    XIX. 

§  471.  From  the  fact  that  the  purchaser,  when  he  has 
taken  possession  of  the  land,  may  on  that  ground  enforce  the 
contract  of  sale  against  the  vendor,  it  seems  to  follow,  upon 
equitable  principles,  that  the  vendor  should  have  a  right  to 
enforce  it  when  he  has  delivered  possession.  At  any  rate 
(and  the  cases  are  not  explicit  as  to  the  reason  upon  which 
the  doctrine  depends),  it  is  held  that  he  may  enforce  upon 
that  ground,  as  an  act  done  by  himself  in  part-performance 
of  the  contract,1  although  this  doctrine  seems  to  be  open  to 
just  the  same  objections  as  those  above  noted  with  regard  to 
possession  delivered. 

§  472.  In  all  cases  in  which  possession,  either  as  delivered 
by  the  vendor,  or  as  assume'd  by  the  purchaser,  is  relied 
upon,  it  must  appear  to  be  a  notorious  and  exclusive  posses- 
sion of  the  land  claimed,  and  to  have  been  delivered  or 
assumed  in  pursuance  of  the  contract  alleged,  and  so  retained 
or  continued.  These  several  elements  of  a  possession  which 
satisfies  the  rules  of  equity  in  such  cases  will  be  briefly 
considered  in  detail. 

§  473.  First,  it  must  be  notorious.  To  allow  a  mere  tech- 
nical possession,  not  open  to  the  observation  of  the  neigh- 
borhood, and  capable  of  being  proved  only  by  select  and 
confidential  witnesses,  to  be  sufficient  for  obtaining  a  decree 
to  enforce  the  contract,  would  manifestly  afford  an  oppor- 

1  Earl  of  Aylesford's  case,  2  Stra.  783;  Pyke  v.  Williams,  2  Vern.  455; 
Harris  v.  Knickerbacker,  5  Wend.  (N.  Y.)  638;  Pugh  v.  Good.  3  Watts  & 
S.  (Pa  )  56;  Reed  r.  Reed,  12  Pa.  St.  117;  Moore  v.  Small,  19  Pa.  St. 
461 ;  White  v.  Crew,  16  Ga.  416;  Nau  v.  Jackman,  58  Iowa,  359 ;  Andrews 
r.  Babcock,  63  Conn.  109;  Andrew  v.  Babcock,  26  Atl.  Rep.  (Conn.)  715; 
Cameron  v.  Austin,  65  Wise.  657.  And  see  Usher  v.  Flood,  83  Ky.  552; 
Dean  v.  Cassiday,  88  Ky.  572.  But  see  Reynolds  v.  Reynolds,  45  Mo.  App. 
022;  Greenlees  v.  Roche,  48  Eans.  503.  In  Barton  v.  Smith,  66  Towa,  75, 
\vhere  the  plaintiff  sued  to  recover  real  estate,  the  defendant  in  possession 
produced  a  written  contract  of  sale  to  himself.  The  plaintiff  was  then 
allowed  to  prove  that  the  defendant  had  verbally  cancelled  his  contract  of 
purchase,  and  had  thereafter  held  as  tenant  and  paid  rent.  On  this 
ground,  it  is  held  that  under  verbal  contracts  for  the  exchange  of  lands, 
possession  of  one  party  may  be  evidenced  by  the  giving  up  of  possession 
by  the  other.  Savage  r.  Lee,  101  Ind.  514. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  601 

tunity  for  and  an  encouragement  to  dishonest  testimony. 
Thus,  where  the  vendor,  having  at  the  time  a  tenant  in  pos- 
session, makes  a  verbal  sale  of  the  premises,  it  has  been 
held  that,  the  tenant  remaining  in  possession,  and  merely 
attorning  to  the  purchaser,  there  was  no  such  open  and 
notorious  change  of  possession  as  would  justify  a  court  of 
equity  in  enforcing  a  contract;  and  that,  at  any  rate,  the 
attornment  must  be  formal,  public,  and  explicit.1 

§  474.  Secondly,  it  must  be  exclusive.  Where  the  pur- 
chaser moves  in  upon  the  premises  and  remains  there  in 
company  with  the  previous  occupant,  not  as  the  ostensible 
and  exclusive  proprietor,2  or  where  the  metes  and  bounds  of 
the  land  alleged  to  be  purchased  are  not  fixed  and  recog- 
nized, and  the  purchaser  occupies  it  in  common  with  adja- 
cent land  of  his  own,3  it  has  been  held  that  possession,  as  an 
act  of  part-performance,  was  not  sufficiently  made  out. 

§  475.  Thirdly,  it  must  be  a  possession  of  the  tract  claimed. 
This  has  never  been  questioned,  and  it  is  obvious  that  it  is 
necessarily  implied  in  the  principles  upon  which  the  cases 
holding  possession  in  any  case  sufficient  have  proceeded. 
Whether  the  whole  of  the  estate  bargained  for  must  be 
occupied,  in  order  to  make  a  case  of  possession  within  the 
meaning  of  the  rule,  is  a  question  requiring  some  remark.4 
Where  several  lots  of  land  were  sold  by  distinct  agreements, 

1  Brawdy  v.  Brawdy,  7  Pa.  St.  157.     And  see  Johnston  v.  Glancy,  4 
Blackf.   (Ind.)  94;  Moore  v.  Small,  19   Pa.  St.  461;  Haslet  v.  Haslet,  6 
Watts  (Pa.)  464;  Frye  v.  Shepler,  7  Pa.  St  91 ;  Charpiot  ».  Sigerson,  25 
Mo.  63. 

2  Frye  v.  Shepler,  7  Pa.  St.  91;  Wooldridge  v.  Hancock,  70  Texas,  18; 
Peek  v.  Peek,  77  Cal.  106.     And  see  Miller  v.  Zufall,   113  Pa.  St.  317; 
Tramraell  v.  Craddock,  93  Ala.  450 ;  Miller  v.  Lorentz,  19  S.  E.  Rep. 
(W.  Va.)  391.     But  see  Brown  v.  Sutton,  129  U.  S.  238.     The  possession 
of  one  cutting  timber  under  an  oral  agreement  has  been  held  not  exclu- 
sive     Sheldon  v.  Preva,  57  Vt.  263. 

«  Haslet  v.  Haslet,  6  Watts  (Pa  )  464.  See  also  Moore  r.  Small,  19 
Pa.  St.  461  ;  Davis  v.  Moore,  9  Rich.  (S.  C.)  Law,  215;  Zimmerman  v. 
Wengert,  31  Pa.  St.  401. 

4  See  Glass  r.  Hulbert,  102  Mass.  28;  Beardsley  v.  Duntley,  69  N.  Y. 
577 ;  Small  v.  Northern  Pacific  R.  R.,  20  Fed.  Rep.  753. 


G02  STATUTE   OF  FRAUDS.  [CH.   XIX. 

Sir  William  Grant  held,  at  the  Rolls,  that  part-performance 
by  taking  possession  of  one  of  such  lots  could  have  no  effi- 
cacy to  relieve  against  the  operation  of  the  statute,  as  to  any 
but  that  particular  lot.1  He  leaves  to  be  inferred,  appar- 
ently, that  where  several  of  the  parcels  are  sold  together,  at 
one  transaction,  and  for  a  gross  price,  it  would  be  otherwise. 
And  so  it  has  been  held  in  New  York,  in  a  case  before  the 
Vice  Chancellor.2  But  the  Supreme  Court  of  Pennsylvania 
appear  to  have  determined  just  the  reverse,  and  to  have  even 
considered  the  fact  that  the  contract  for  the  several  parcels 
was  an  entire  contract,  and  a  gross  price  to  be  paid  for  the 
whole,  a  conclusive  circumstance  against  the  sufficiency  of 
taking  or  delivering  possession  of  one  parcel  only.  In  the 
vigorous  opinion  of  Mr.  Justice  Kennedy,  speaking  for  the 
court,  the  whole  doctrine  of  enforcing  verbal  contracts  for 
land  on  the  ground  of  possession  merely,  is  ably  criticised, 
and  it  is  declared  that  the  court  know  of  no  case  where  the 
point  referred  to  was  otherwise  determined.3  Possibly  the 
aversion  of  that  learned  bench,  there  expressed,  to  the  estab- 
lished doctrine  in  regard  to  possession  as  amounting  to 
part-performance,  inclined  it  to  a  more  strict  and  narrow 
application  of  that  doctrine  than  other  courts  would  be  dis- 
posed to  adopt.  Possession  of  a  tract  of  land  must  generally 
be,  from  the  nature  of  the  case,  a  possession  of  part  only  as 
representing  the  whole.  So  long,  therefore,  as  the  contract 
under  which  possession  is  claimed  to  have  been  taken  or 
delivered  is  an  entire  contract,  though  the  land  consists  of 
several  parcels,  it  would  seem  more  reasonable  to  hold  that 
possession  of  one  of  such  parcels  was  equivalent  to  posses- 

1  Buckmaster  r.  Harrop,  7  Ves.  341. 

2  Smith  v.  Underdunck,  1  Sand.  Ch.  579.     So  in  Wisconsin,  Jones  v. 
Pease,  21   Wise.  644.     And  see  Bigelow  v.  Armes,  108  U.  S.  10;  Union 
Pacific  R.   R.  v.  Me  Alpine,  129  U.  S.  305;  Blalock  v.  Waggoner,  82  Ga. 
122. 

•  Allen's  Estate,  1  Watts  &  S.  383.  See  also  McClure  v.  McClure,  1 
Pa.  St.  374;  Pugh  v.  Good,  3  Watts  &  S.  56;  Myers  v.  Crosswell,  45  Ohio 
St.  543. 


CH.    XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  603 

sion  of  the  whole.  This  view  is  illustrated  and  confirmed 
by  what  we  have  heretofore  seen  to  be  the  settled  rule  in 
cases  of  sales  of  goods  consisting  of  several  parcels ;  namely, 
that  an  acceptance  and  receipt  of  one,  or  a  part  of  one  of 
such  parcels,  was  sufficient  to  withdraw  the  whole  contract 
from  the  operation  of  the  seventeenth  section.1 

§  476.  Fourthly,  the  possession  must  appear  to  have  been 
delivered  or  assumed  in  pursuance  of  the  contract  alleged.2 
Thus,  it  is  abundantly  settled,  that  if  one  who  is  already  in 
possession  of  land  as  tenant,  verbally  contract  with  the 
owner  for  a  new  term,  his  merely  continuing  in  possession 
after  the  making  of  the  alleged  contract  is  not  an  act  of  tak- 
ing possession  within  the  meaning  of  the  rule,  so  as  to 
justify  a  decree  for  a  lease  according  to  the  contract.3 

§  477.  The  same  reasoning  applies,  of  course,  where  the 
contract  set  up  is  the  sale  of  the  estate  to  the  defendant  by 
the  owner  of  the  fee.  And,  in  like  manner,  where  the 
tenant's  old  term  has  expired  and  he  holds  over,  such  hold- 
ing will  not  be  decreed  an  act  of  part-performance  of  an 
alleged  contract  for  the  purchase  of  the  estate,  but  is  more 

1  Ante,  §  334. 

3  Neal  v.  Neal,  69  Ind.  419;  Judy  v.  Gilbert,  77  Tnd.  96. 

8  Seagood  r.  Meale,  Finch,  Prec  Ch  560;  Morphett  r.  Jones,  1  Swanst. 
172;  Wills  v.  Stradling,  3  Ves.  Jr.  378;  Gregory  ».  Mighell,  18  Ves.  328; 
Savage  «;.  Carroll,  1  Ball  and  B.  265,  548;  Kine  v.  Balfe,  2  Ball  &  B.343; 
Christy  v.  Barnhart,  14  Pa.  St.  260;  Aitkin  v.  Young,  12  Pa.  St.  15; 
Greenlee  v.  Greenlee,  22  Pa.  St.  225;  Johnston  v.  Clancy,  4  Blackf.  (Ind.) 
94 ;  Wilde  r.  Fox,  1  Rand.  (Va.)  165;  Armstrong  r.  Kattenhorn,  11  Ohio, 
265;  Cole  v.  Potts,  10  N.  J.  Eq.  67;  Rosenthal  r.  Freeburger,  26  Md.  75; 
Billinsslea  v.  Ward,  33  Md.  48;  Mahana  v.  Blunt,  20  Towa.  142;  Ander- 
son v.  Simpson,  21  Iowa,  399;  Wilmer  v.  Farris,  40  Iowa,  309;  Carrolls  v. 
Cox,  15  Iowa.  455.  See  Hooper,  ex  parte,  19  Ves.  477,  per  Lord  Eldon; 
Truman  v.  Truman,  79  Iowa,  506;  Green  v.  Groves,  109  Ind.  519; 
Padfield  v.  Padfield,  92  111.  198;  Pickerell  v.  Mores,  97  111.  220  ;  Clark  v. 
Clark,  122  Til.  388;  Ducie  r.  Ford,  138  U.  S.  587;  Haines  r.  McGlove,  44 
Ark.  79;  Von  Trotha  v.  Bamberger,  15  Col.  1;  Boozer  v.  Teagne,  27 
S.  C.  348;  Charles  i>.  Byrd,  29  S.  C.  544;  Nibert  r.  Baghurst,  47  N.  J. 
Eq.  201 ;  Foster  v.  Maginnis,  89  Cal.  264;  Barnes  v.  Boston  &  Maine  R.  R., 
130  Mass.  388;  Andrews  v.  Babcock,  63  Conn.  109.  But  see  Barton  r. 
Smith,  66  Iowa,  75. 


604  STATUTE   OF  FRAUDS.  [CH.   XIX. 

naturally  referable  to  his  landlord's  permission  to  continue 
in  possession  upon  the  terms  of  the  old  holding.1 

§  478.  Some  disposition  seems  to  exist,  both  in  courts  2 
and  text-writers,3  to  treat  the  continuing  in  possession,  and 
the  taking  of  it,  as  standing  upon  the  same  footing,  and 
therefore  entitled  to  the  same  weight,  in  the  view  of  a  court 
of  equity.  However  unsatisfactory  the  rule  may  be  that 
allows  proof  of  possession  merely  to  justify  a  decree  for 
specific  performance,  there  is  this  to  be  said  in  its  favor, 
that  the  taking  of  possession  is  an  overt  and  public  act  of 
the  plaintiff,  capable  of  proof  or  disproof  by  other  testimony 
than  his  word  alone,  whereas,  in  the  case  of  continuing  in 
possession,  there  is  no  new  act,  nor  can  any  change  of  posi- 
tion be  shown  save  by  the  word  of  the  party  seeking  to 
enforce  an  alleged  oral  agreement.  And  beside  the  fact  that 
of  itself  it  affords  no  corroboration  of  the  parol  testimony 
upon  which  its  proof  solely  depends,  it  is  difficult  to  see  how 
a  mere  change  in  the  character  of  a  possession  already  taken 
can  in  any  case  be  followed  by  consequences  so  serious  as  to 
be  ground  for  equitable  interference.  The  important  pre- 
requisite to  the  exercise  of  that  power  is  that  the  plaintiff 
should  show  such  acts  and  conduct  on  his  part,  as  of  them- 

1  Jones  v.   Peterman,  3  Serg.  &  R.  (Pa.)  543,  per  Tilghman,  C.  J., 
Sugden,  Vend.  &  P.  141 ;  Danforth  v.  Laney,  28  Ala.  274  ;  Recknagle  v. 
Schmaltz,  72  Iowa,  63 ;  Railsback  v.  Walks,  81  Ind.  409 ;  Felton  v.  Smith, 
84  Tnd.  485;  Messmore  v.  Cunningham,  78  Mich.  623;  Koch  v.  National 
Building  Association,  137  111.  497;  Bigler  v.  Baker,  58  N.  W.  Rep.  (Neb.) 
1026. 

2  In  Pearson  v.  East,  36  Ind.  27,  the  court  was  equally  divided  upon  the 
question  of  the  effect  of  continuing  in  possession  merely.     In  Merrill  p. 
Cooper,  65  Barb.  (N.  Y.)  512,  continuing  in  possession,  with  payment  in 
full,  was  held  sufficient  to  bar  the  defence  of  the  statute.     Upon  full  con- 
sideration a  contrary  decision  was  reached  in  Emmel  v.  Hayes,  102  Mo. 
186,  overruling  Simmons  v.  Headlee,  94  Mo.  482.     But  see  Peckham  v. 
Balch,  49  Mich.  179. 

8  In  [§  763,  a]  of  Story's  Eq.  Jur  ,  the  editor  says:  "  We  see  no  rea- 
son why  the  continuance  of  possession  under  a  contract  may  not  be  re- 
garded as  much  part-performance  as  the  taking  possession  under  the 
contract." 


CH.    XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  605 

selves  are  confirmatory  both  of  his  having  made  the  contract 
and  furthermore  of  his  having  acted  upon  the  faith  of  it  after 
it  was  made.  But  the  continued  holding  is  naturally  and 
properly  referable  to  the  old  tenancy,  and  does  not  at  all 
necessarily  suggest  any  new  agreement  between  the  parties. 

§  479.  The  payment  of  an  additional  rent  is  in  itself  an 
equivocal  circumstance,  where  a  claim  is  set  up  of  a  positive 
agreement  for  a  new  lease,  inasmuch  as  it  may  be  attributed 
to  a  mere  holding  from  year  to  year,  after  the  expiration  of 
the  old  lease,  or  there  may  be  other  inducements  to  its  pay- 
ment. But  where  the  bill  to  enforce  such  an  agreement 
alleged  that  the  landlord  had  accepted  the  additional  rent 
upon  the  foot  of  the  agreement,  Lord  Loughborough  would 
not  allow  a  plea  of  the  statute,  but  required  the  landlord  to 
answer  to  the  allegation.1 

§  480.  Where  the  tenant,  continuing  in  possession,  makes 
improvements  upon  the  premises,  this  fact  is  of  weight  to 
show  a  change  in  the  holding.2  But  they  must,  of  course, 
be  of  such  a  marked  and  important  character  as  to  be  not 
naturnlly  reconcilable  with  the  continuance  of  the  old  rela- 
tion. In  a  case  where  the  improvements  which  were  made 
and  the  alleged  expenditure  by  the  tenant  were  no  more 
than  what  would  take  place  in  the  ordinary  course  of  hus- 
band y,  Lord  Chancellor  Sugden  said  that  it  would  be 
against  all  authority  to  say  that  such  acts  amounted  to 
part-pef  ormance. 8 

§  481.  Where  the  party  alleging  the  contract,  however, 
was  previously  a  stranger  to  the  estate,  the  question,  quo 
animo  the  possession  was  taken,  is  generally  answered,  with- 

*  Wills  r.  Stradling,3  Ves.  Jr.  378;  Wilde  ».  Fox,  1  Rand.  (Va  )  165; 
Williams  ».  Landman,  8  Watts  &  S.  (Pa.)  55;  Spear  v.  Orendorf,  26  Md 
37;  Spalding  v.  Conzelman,  30  Mo.  177;  Nunn  v.  Fabian,  L.  R.  1  Ch. 
App.  35;  Lincoln  v.  Wright,  4  De  G.  &  J.  16. 

2  Savage  u.  Carroll,  1  Ball  &  B.  265;  Sutherland  v.  Briggs,  1  Hare,  26; 
Dowell  r.  Dew,  1  Younge  &  C.  C.  C.  345;  Hibbert  v.  Aylott,  52  Texas, 
530:  Edwards  v.  Fry,  9  Kans.  285. 

3  Brennan  ».  Bolton,  2  Dru.  &  W.  349.     And  see  Frame  v.  Dawson. 
14  Ves.  386  ;  Padfield  v.  Padfield,  92  111.  198. 


606  STATUTE   OF   FKA.UDS.  [CH.   XIX. 

out  further  proof,  by  the  mere  fact  of  his  being  in  possession 
with  the  knowledge  of  the  owner  of  the  fee,  and  without 
objection  by  him;  a  natural  presumption  arising  from  this 
fact,  that  some  contract  has  been  entered  into  between  the 
parties.  This  presumption,  however,  it  is  said,  does  not 
arise  where  a  son  enters  upon  land  previously  owned  by  his 
father,  even  though  he  make  valuable  improvements  thereon ; 
such  a  transaction  generally  resulting  from  the  confidence 
which  exists  between  father  and  son,  that  the  father  will 
provide  for  the  son  in  his  will,  which  is  perfectly  consistent 
with  the  father's  salutary  retention  of  the  title  to  the  land.1 

§  482.  From  the  very  terms  of  the  rule  that  the  possession 
must  be  taken  or  delivered  in  pursuance  of  the  contract,  it 
seems  to  follow  that  it  must  be  subsequent  to  it  in  time. 
And  it  was  so  held  in  Pennsylvania,  in  a  case  where  the 
plaintiff  had  taken  possession,  and  made  improvements  upon 
the  land  in  anticipation  of  the  contract.2  Where  a  tenant 
under  an  unexpired  lease  for  a  year  made  an  oral  agreement 
for  a  term  of  years  to  begin  at  the  end  of  his  yearly  holding, 
it  was  held  that  valuable  improvements  made  after  the  agree- 
ment but  before  the  new  term  began  would  justify  a  decree 
for  specific  performance.3 

§  483.  In  all  cases  the  entry  of  the  purchaser  must  be  with 
the  knowledge  of  the  vendor.  Otherwise  he  cannot  be  said  to 
enter  under  the  contract  at  all,  but  is  a  mere  trespasser,  and 
can  derive  no  benefit  from  his  trespass,  for  the  purpose  of 
obtaining  a  specific  execution  of  any  contract  he  may  have 
for  the  purchase  of  the  land ;  nor,  on  the  other  hand,  can  the 
vendor  be  charged  with  fraud  in  respect  of  a  transaction  to 
which  he  was  not  privy  and  consenting.4  To  use  the  exp.res- 

1  Eckert  v.  Eckert,  3  Penna.  Rep   332.     See  also  Haines  v.  Haines,  6 
Md.  435;  Johns  ».  Johns,  67  Ind.  440. 

2  Eckert  v.  Eckert,  3  Penna.  Rep.  332.     See  also  Inman  v.  Stamp,  1 
Stark.  12 ;    Reynolds  v.  Hewett,  27  Pa.  St.  176 ;  Myers  c.  Byerly,  45  Pa. 
St.  368 ;  Knoll  v.  Harvey,  10  Wise.  99.     See  however,  Pain  v.  Coombs,  1 
De  G.  &  J.  46,  per  L.  J.  Knipht  Brnce. 

8  Morrison  v.  Herrick,  130  111.  031. 

4  Cole  v.  White,  cited  in  1  Bro.  C.  C.  409;  Gregory  v.  Mighell,  18  Vea. 


CH.   XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  607 

sive  phrase  of  Mr.  Justice  Grier,  "  a  scrambling  and  litigious 
possession  "  will  not  suffice  to  make  a  case  for  relief  in 
equity.1  At  the  same  time,  it  would  seem  that  where  pos- 
session has  been  long  continued  under  the  eye  of  the  vendor, 
he  would  be  held  estopped  to  deny  that  the  entry  was  with- 
out his  consent.2  Permitting  the  party  to  occupy  the  property 
for  a  few  months,  however,  where  it  was  of  trifling  value  as 
to  profits,  and  no  improvements  put  upon  it  in  the  mean- 
time, has  been  considered  insufficient  for  this  purpose.3 

§  484.  But  it  does  not  follow  that  because  an  entry  against 
the  will,  and  without  the  knowledge  of  the  vendor,  is  not  to 
be  taken  as  an  act  of  part-performance,  therefore  no  entry  is 
to  be  so  taken  which  is  not  by  the  terms  of  the  contract 
stipulated  to  be  allowed.  If  it  is  in  pursuance,  that  is,  on 
the  faith  of  the  contract,  and  with  the  permission  of  the 
vendor,  that  is  sufficient.4 

§  485.  Lastly,  the  possession  relied  upon  must  not  only 
be  taken  under  the  contract,  but  so  retained.  Where  a  pur- 
chaser takes  possession  under  the  contract,  and  afterward 
attorns  to  the  vendor  as  landlord,  it  has  been  held  that  he 
yields  his  equity,  and  his  possession  is  referable  to  his  new 
agreement.6 

328;  Goucher  v.  Martin,  9  Watts  (Pa.)  106;  Gratz  v.  Gratz,  4  Rawle, 
(Pa. ) 411;  Sager.  M'Gmre,  4  Watts  &  S.  (Pa.)  228;  Johnston  v.  Glancy, 

4  Blackf.  (Ind.)  94;  Thomson  v.  Scott,  1  McCord  (S.  C.)  Ch.  32;  Givens 
v.  Calder,  2  Desaus.  (S.  C.)  Ch.  171;  Ash  v.  Daggy,  6  Ind.  259;  Jervis 
v.  Smith.  Hoff.  (NT.  Y.)  Ch.  470:  Carrolls  v.  Cox,  15  Iowa,  455;  Evans  ». 
Lee,  12  Nevada,  393;  Ryan  v.  Wilson,  56  Texas,  36;  Kaufman  ».  Cook, 
114  111.  11.     Possession  taken  and  improvements  made  after  the  death  of 
the  alleged  vendor  do  not  make  a  case  of  part-performance  as  against  his 
estate.     Rochester  v.  Yesler,  6  Wash.  (Nev.)  116. 

i  Pnrcell  v.  Miner,  4  Wall.  (U.  S.)  513. 

8  Thomson  >•.  Scott,  1  McCord  (S.  C.)  Ch.  32  ;  Harris  t'.  Knickerbacker, 

5  Wend.  (N.  Y.)  645. 

«  Jervis  v.  Smith.  Hoff.  (N.  Y.)  Ch.  470. 

4  Harris  v.  Knickerbacker,  5  Wend.  (X.  Y.)  645;  Smith  v.  Under- 
dunk,  1  Sand.  (\.  Y.)  Ch.  579.  And  see  Gregory  v.  Mighell,  18  Ves. 
828;  Chamhliss  c.  Smith,  30  Ala.  3(56 

*  Rankin  v.  Simpson,  19  Pa.  St  471 ;  Dougan  v.  Blocher,  24  Pa.  St. 
28.  See  Cham  bliss  v.  Smith.  30  Ala.  366;  Johnson  v.  Reading,  36  Mo. 
App.  306;  Drum  v.  Stevens,  94  Ind.  181. 


608  STATUTE   OF  FKAUDS.  [CH.   XIX. 

§  486.  It  may  conveniently  be  observed  at  this  point,  that 
the  efficacy  of  possession  taken  as  part-performance  cannot 
rest  on  the  mere  ground  of  its  being  an  act  of  ownership.  If 
the  purchaser  under  a  parol  contract  omit  to  take  possession, 
such  acts  as  having  the  land  assessed  in  his  own  name  and 
paying  taxes  upon  it,1  or  even  cutting  timber  upon  it,  or 
making  other  transitory  use  of  it  (and  this  latter,  too,  in  a 
case  of  uncultivated  timber  land,  such  as  is  not  ordinarily 
taken  possession  of  in  any  other  way),2  have  been  held 
insufficient,  though  clearly  acts  of  ownership. 

§  487.  It  is  always  regarded  as  strongly  confirmatory  of 
the  right  of  a  plaintiff  seeking  the  specific  execution  of  a 
verbal  contract  for  an  estate  in  land,  that  he  has  proceeded, 
upon  the  faith  of  the  contract,  and  with  the  knowledge  of  the 
vendor,  to  expend  money  in  improving  the  land  for  which  he 
has  paid  and  of  which  he  has  taken  possession.3  In  cases 

1  Christy  u.  Barnhart,  14  Pa.  St.  260.  explaining  Lee  v.  Lee,  9  Pa.  St. 
169. 

2  Gangwer  v.  Fry,  17  Pa.   St.  491.     But  see  Borrett  v.  Gomeserra, 
Bunb.  91;  Hunt  v   Lipp,  30  Neb.  469. 

8  Savage  v,  Foster,  9  Mod.  35;  Wetmore  v.  White,  2  Caines  (N.  Y.) 
Gas.  87 ;  Adams  v.  Rockwell,  16  Wend.  (N.  Y.)  285 ;  Cummins  t>.  Nutt, 
Wright  (Ohio)  713;  Casler  v.  Thompson,  3  Green  (N.  J.)  Ch.  59;  Cum- 
mings  v.  Gill,  6  Ala.  562 ;  Floyd  v.  Buckland,  Freem.  Ch.  268  ;  2  Eq.  Cas. 
Abr.  44;  Harrison  v.  Harrison,  1  Md.  Ch.  Dec.  331  ;  Harder  v.  Harder, 
2  Sand.  (N.  Y.)  Ch.  17;  Moreland  v.  Lemasters,  4  Blackf.  (Tnd.)  383; 
Martin  v.  McCord,  5  Watts  (Pa.)  492  ;  Parkhurst  v.  Van  Cortland,  14 
Johns.  (N.  Y.)  15;  Ridley  v.  McNairy.  2  Humph.  (Tenn.)  174  ;  Rowton 
v.  Rowton,  1  Hen.  &  M.  (Va.)  92;  Surcome  v.  Pinniger,  3  De  G.,  M.  & 
G.  571;  Syler  v.  Eckhart,  1  Binn.  (Pa.)  378;  Milliken  v.  Dravo,  67  Pa. 
St.  230;  Shepherd  v.  Bevin,  9  Gill  (Md.)  32;  Byrd  v.  Odem,  9  Ala.  755; 
Brock  v.  Cook,  3  Port.  (Ala.)  464  ;  Toole  v  Medlicott,  1  Ball  &  B.  393; 
Underbill  v.  Williams,  7  Blackf.  (Ind  )  125;  Wilton  v.  Harwood,  23.  Me. 
131;  Wilkinson  i:  Wilkinson,  1  Desaus.  (S.  C.)  Ch.  201;  Newton  v. 
Swazey,  8  N.  H.  9  ;  Blakeney  c.  Ferguson,  8  Ark.  272;  Conway  v.  Sherron, 
2  Cranch  (C.  C.)  80;  Farley*.  Stokes,  1  Sel.  Eq.  Cas.  (Pa.)  422;  Miller  v. 
Tobie,  41  X.  H.  84 ;  School  Dist.  No.  3  v.  Macloon,  4  Wise.  79 ;  Morin  r. 
Martz,  13  Minn.  191 ;  Hoffman  v.  Fett,  39  Cal.  109 ;  Pfiffner  r.  Stillwater 
&  St.  Paul  R.  R.  Co.,  23  Minn.  343;  Seaman  v.  Ascherman,  51  Wise.  678: 
Morrison  v.  Herrick,  130  111.  631;  Pledger  v.  Garrison,  42  Ark.  246; 
Meetze  ».  Railroad  Co  ,  23  S.  C.  2;  Ponce  v.  McWhorter,  50  Texas,  562; 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  609 

of  purchasers  who  were,  before  and  at  the  time  of  the  con- 
tract, tenants  of  the  same  land,  as  we  have  just  seen,  it  is 
often  conclusive  of  the  nature  and  animus  of  their  continued 
possession;  thus  serving  to  explain  and  define  one  act  of 
part-performance,  by  means  of  a  superadded  and  corrobora- 
tory act.  The  propriety  of  admitting  this  expenditure  of 
money  in  improvements  as  a  reason  for  enforcing  the  con- 
tract, is  much  more  clear  upon  the  equitable  view  of  prevent- 
ing fraud,  than  is  that  of  admitting  the  taking  or  delivery 
of  possession.  For  in  many  cases  such  improvements  are 
carried  to  that  point  that  they  are  quite  incapable  of  being 
compensated  in  damages.  And  even  where  this  is  not  so,  it 
is  a  plain  fraud  for  a  vendor  who  has  encouraged  a  purchaser 
to  make  them,  to  compel  him  to  dispose  of  them  afterward, 
and  lose  the  expected  fruit  of  enterprise  and  industry,  thus 
directly  making  a  profit  out  of  the  deception  which  he  has 
himself  practised.1 

§  487  a.  In  a  case  where  the  plaintiff  entered  and  improved 
under  a  contract  of  sale  with  the  tenant  for  life,  it  was  held 
that  the  former  could  not  enforce  the  specific  performance  of 
the  agreement  against  the  remainder-man,  it  not  being  shown 
that  the  expenditure  had  been  made  with  his  knowledge  and 
consent.2 

§  488.  The  improvements  relied  upon  must  be  of  a  kind 
permanently  beneficial  to  the  estate,  and  involving  a  sacri- 
fice to  the  purchaser  who  made  them.3  Thus,  the  cutting  of 

Moulton  i'.  Harris,  94  Cal.  420;  Johnson  v.  Hurley,  115  Mo.  513  ;  Hays  r. 
Kansas  City  R.  R.,  108  Mo.  554;  Wall  v.  M.,  St.  P.  &  S.  S.  M.  R.  R.,86 
Wise.  48;  Lloyd  ».  Hollenback,  98  Mich.  203;  Young  r.  Overbaugh,  76 
Hun  (N.  Y.)  151 ;  Mudgett  v.  Clay.  5  Wash.  103;  Young  v.  Young,  45 
N.  J.  Eq.  27;  Bard  v.  Ellston,  31  Kans  274. 

1  Whether  the  making  of  improvements  not  amounting  to  occupation 
of  the  land  will  suffice,  see  Ackerman  r.  Fisher,  57  Pa.  St.  457. 

2  Blore  r.  Sutton,  3  Mer.  237.     See  Shannon  v.  Bradstreet,  1  Schoales 
&  L.  72  ;  Morgan  v.  Milman,  3  De  G.,  M.  &  G.  24. 

*  Hollis  v.  Edwards,  1  Vern  159  ;  Deane  ».  Izard.  1  Vern.  159  ;  Hamil- 
ton v.  Jones,  3  Gill  &  J.  (Md.)  127;  Davenport  v.  Mason,  15  Mass.  85; 
Wolfe  v.  Frost,  4  Sandf.  (N.  Y.)  Ch.  72;  Wack  ».  Sorber,  2  Whart. 
(Pa.)  387.  39 


610  STATUTE   OF   FRAUDS.  [CH.    XIX. 

a  ditch  through  an  adjoining  estate,  in  order  to  supply  the 
plaintiff's  mill  with  water,  though  attended  with  expense  to 
himself,  has  no  effect  to  induce  a  decree  for  the  specific  exe- 
cution of  a  verbal  agreement  by  the  owner  of  the  adjoining 
estate  to  sell  the  ditch  to  the  plaintiff;  it  is  not  beneficial  to 
that  estate,  but  the  reverse.1  Again,  as  the  same  case  illus- 
trates, the  improvements  must  be  on  the  faith  of  the  contract, 
and,  of  course,  are  not  available  to  set  up  a  subsequent 
contract.2 

§  489.  But  although  the  improvements  are  required  to  be 
beneficial  to  the  estate,  a  court  of  equity  will  not  inquire 
whether  the  expenditures  have  been  judiciously  or  injudi- 
ciously made ;  for,  apart  from  the  many  embarrassments 
which  would  attend  the  determination  of  such  a  question,  it 
would  be  plainly  inequitable  to  allow  the  vendor  in  such  a 
case  to  defend  upon  the  ground  of  the  innocent  indiscretion 
of  the  purchaser.  To  use  the  language  of  Lord  Thurlow, 
"whether  the  money  has  been  well  or  ill  laid  out  is  indiffer- 
ent; the  fraud  is  the  same."3 

§  490.  It  must  appear,  however,  that  the  loss  of  his 
improvements  would  be  a  sacrifice  to  the  purchaser.  If 
therefore  he  has  gained  more  by  the  possession  and  use  of 
the  land,  than  he  has  lost  by  his  improvements,4  or  if  he  has 
been  in  fact  fully  compensated  for  the  improvements,5  they 
will  not  be  available  to  him  as  a  ground  for  specific  execu- 
tion. On  the  other  hand,  the  vendor  will  never  be  allowed 
to  profit  by  the  expenditures  into  which  he  has  deceived  the 
purchaser ;  therefore  when  the  court  finds  itself  compelled, 
for  want  of  sufficient  acts  of  part-performance  being  shown, 

1  Hamilton  v.  Jones,  3  Gill  &  .1.  (Md.)  127. 

2  Byrne  v.  Romaine,  2  Edw.  (N.  Y.)  Ch.  445;  Farley  v.  Stokes,  1  Sel. 
Eq.  Cas.  (Pa.)  422;  Wood  v.  Thornly,  58  Til.  464;  Sands  v.  Thompson, 
43  Ind.  18 ;  Abbott  v.  Baldwin,  61  N'.  H.  583. 

8  Whitbread  ».  Brockhurst,  1  Bro.  C.  C.  417. 
4  Wack  v.  Sorber,  2  Whart.  (Pa.)  387. 

6  Eckert  v.  Eckert,  3  Penna.  Rep.  332;  Ash  v,  Daggy,  6  Ind.  259; 
Pond  v.  Sheean,  132  111.  312. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED  IN   EQUITY.  611 

or  from  failure  in  the  proof  of  the  terms  of  the  contract,  to 
refuse  to  enforce  it,  they  will  decree  compensation  to  be 
made  by  the  vendor  to  the  purchaser  for  the  fair  value  of  the 
improvements. 1 

§  491.  From  the  language  of  some  of  the  cases,  it  seems 
to  be  considered  that  the  making  of  improvements  cannot  be 
relied  on  as  an  act  of  part-performance,  unless  it  was  stipu- 
lated in  the  agreement  itself  that  they  should  be  so  made ; 
and  it  is  said  by  Mr.  Roberts  to  be  hardly  reconcilable  with 
the  rule  to  call  it  an  act  of  part-performance,  unless  this  is 
the  case,  because  of  the  rule  that  such  an  act  must  be  done 
with  a  view  to  perform  the  agreement.2  But  this  arises  from 
a  too  narrow  view  of  the  nature  of  the  equity  jurisdiction, 
as  based  solely  on  acts  done  in  performance  of  the  contract, 
as  distinguished  from  those  done  in  reliance  upon  it.3 

§  491  a.  A  principle  analogous  to  that  upon  which  tak- 
ing possession  of  and  making  improvements  upon  the  land 
claimed,  protect  the  claimant  from  the  operation  of  the  Stat- 
ute of  Frauds  in  courts  of  equity,  is  applied  to  gifts  of  lands, 
upon  the  faith  of  which  such  possession  has  been  taken  and 
such  improvements  made,  although  there  is  in  such  cases  no 
contract  enforceable  even  at  common  law,  the  gift,  if  strictly 


1  Lord  Pengall  v.  Ross,  2  Eq.  Cas.  Abr.  46 ;  Parkhurst  v.  Van  Cort- 
landt,  1  Johns.  (N.  Y.)  Ch.  273;    Wack  v.  Sorber,  2  Whart.  (Pa.)  387; 
Harden  v.  Hays,  9  Pa.  St.  151;  Heft  v.  McGill,  3  Pa.  St.  256;  Dunn  ». 
Moore,  3  Ired.  (N.  C.)  Eq.  364;  Goodwin  v.  Lyon,  4  Port.  (Ala.)  297. 
In  Anthony  v.  Leftwich,  3  Rand.  (Va.)  255,  the  rule  of  compensation  in 
such  cases  is  instructively  discussed.     In  North  Carolina,  where  the  doc- 
trine of  part-performance  does  not  obtain,  he  is  allowed  in  a  court  of 
equity  on  account  for  his  improvements.     Albea  v.  Griffin,  2  Dev.  &  B. 
Eq.  9 ;  Baker  v.  Carson,  1  Dev.  &  B.  Eq.  381 ;  Pitt  ».  Moore,  99  N.  C.  85. 
Where  the  plaintiff,  being  behindhand  in  his  payments,  was  warned  by 
the  defendant  not  to  put  on  improvements,  except  at  his  own  risk,  he  was 
not  allowed  to  recover  for  improvements  afterwards  made.     Rainer  v. 
Huddleston,  4  Heisk.  (Tenn.)  223. 

2  Roberts  on  Frauds,  135. 

8  See  Ingles  v.  Patterson,  36  Wise.  373 ;  Neale  r.  Neales,  9  Wall. 
(U.  S.)  1;   Swain  v.  Seameus,  9  Wall.  (U.  S.)  254;  ante,  §  457. 


612  STATUTE   OF  FRAUDS.  [CH.   XIX. 

such,  being  without  a  consideration  sufficient  to  support  an 
action  for  breach  of  the  promise  to  give.1 

§  492.  It  should  be  remarked,  in  conclusion  of  this  topic, 
that  the  decided  inclination  of  the  courts  appears  to  be 
against  extending,  beyond  those  limits  to  which  it  has  been 
carried  by  clear  authority,  the  doctrine  of  enforcing  oral 
contracts  in  equity  upon  the  ground  of  part-performance. 
As  Lord  Redesdale  remarks,  the  "  statute  was  made  for  the 
purpose  of  preventing  perjuries  and  frauds,  and  nothing  can 
be  more  manifest  to  any  person  who  has  been  in  the  habit  of 
practising  in  courts  of  equity,  than  that  the  relaxation  of  that 
statute  has  been  a  ground  of  much  perjury  and  much  fraud. 
If  the  statute  had  been  rigorously  observed,  the  result  would 
probably  have  been  that  few  instances  of  parol  agreements 
would  have  occurred;  agreements  would,  from  the  necessity 
of  the  case,  have  been  reduced  to  writing:  whereas  it  is 
manifest  that  the  decisions  on  the  subject  have  opened  a  new 
door  to  fraud,  and  that  under  pretence  of  part  execution,  if 
possession  is  had  in  any  way  whatever,  means  are  frequently 
found  to  put  a  court  of  equity  in  such  a  situation  that,  with- 
out departing  from  its  rules,  it  feels  itself  obliged  to  break 
through  the  statute.  And  I  remember,  it  was  mentioned  in 
one  case,  in  argument,  as  a  common  expression  at  the  bar, 
that  it  had  become  a  practice  '  to  improve  gentlemen  out  of 
their  estates. '  It  is,  therefore,  absolutely  necessary  for  courts 
of  equity  to  make  a  stand,  and  not  carry  the  decisions 
further. "  2 

1  McLain  v.   School  Directors   of  White  Township,  51  Pa.   St.  196; 
Freeman  r.  Freeman,  43  N.  Y.  34;  Murphy  v.  Stell,  43  Tex.  123;  Neale 
r.  Neales,  9  Wall.  (U.  S.)  1  ;  ante,  §  467  ;  Mauck  r.  Melton,  64  Ind.  414 ; 
Allison  c.  Burns,  107  Pa.  St.  50;  Ogsbury  v.  Ogsbury,  115  N.  Y.  290; 
Stratton  v.   Stratton,  58  N.  H.  473;    White  v.  Ingram.  110  Mo.  474; 
Dougherty  v.  Hartel,  91   Mo.   161;  Youn£  v.   Young,  45  N.  J.   Eq.  27: 
Smith  v.  Smith.  125  N.  Y.  224;  West  r.  Bandy,  78. Mo.  407;  Anderson 
r.  Shocbley.  82  Mo.  250. 

2  Lindsay  v.  Lynch,  2  Schoales  &  L.  .5.     See  also  Harnett  v.  Yeilding, 
2  Schoales  &  L.  549;  Forster  v.  Hale,  3  Ves.  Jr.  696,  per  Lord  Alvanley; 
O'Reilly  v.  Thompson,  2  Cox,  271;  Parkhurst  v.  Van  Cortiandt,  1  Johns. 


CH.   XIX.]       VERBAL   CONTEACTS   ENFORCED   IN   EQUITY.  613 

§  492  a.  It  has  been  held 1  that  possession  taken  and  im- 
provements made  under  a  verbal  contract  for  land  constitute 
an  equitable  title  which  may  be  enforced,  not  only  between 
the  parties,  but  against  a  third  party  taking  a  deed  of  the 
land  with  knowledge  of  such  possession  and  improvements. 
This  seems  to  be  a  dangerous  extension  of  the  doctrine  of 
part-performance. 

§  493.  In  all  cases  where  the  plaintiff  seeks  relief  upon 
the  ground  of  his  having  in  part  performed  the  agreement, 
it  is  incumbent  upon  him  not  only  to  show  his  acts  of  part- 
performance,  but  also  to  prove  to  the  satisfaction  of  the  court 
the  terms  of  the  agreement,  before  they  will  undertake  to 
enforce  it.2 

§  494.  As  to  the  degree  of  proof  which  will  suffice  in  such 
cases,  it  is  obviously  quite  impossible  to  lay  down  any  gen- 

(N.  Y.)   Ch.  273;  Phillips  v.  Thompson,    1  Johns.  (X.  Y.)  Ch.  131  ; 
Eyre  v.  Eyre,  19  N.  J.  Eq.  102. 

1  C.  B.  &  Q.  R.  R.  Co.  v.  Boyd,  118  111.  73. 

2  Pilling  v.   Armitage,  12  Ves.  78;   Parkhurst  v.  Van  Cortlandt,  1 
Johns.  (N.  Y  )  Ch.  273;  8.  c.  nom.  Parkhurst  v.  Van  Cortland,  14  Johns. 
15;  Phillips  v.  Thompson,  1  Johns.  (N.  Y.)  Ch.  131;  Sage  v.  M'Guire, 
4  Watts  &  S.   (Pa.)  228;  Frye  v.   Shepler,  7  Pa.   St.   91;  Greenlee  v. 
Greenlee.  22  Pa.   St.  225;  Rankin  v.  Simpson,  19  Pa.  St.  471;  Moore  v. 
Small,  19  Pa.   St.  461;  Burns  v.   Sutherland,  7  Pa.    St.    103;    Hugus  v. 
Walker,  12  Pa.  St.  173;  Charnley  ».  Hansbury,  1C  Pa.  St.  16;  Shepherd 
v.  Bevin,  9  Gill  (Md.)  32;  Owings  v.    Baldwin,   1  Md.  Ch.  Dec.   120; 
Shepherd  v.  Shepherd,  1  Md.  Ch.  Dec,  244;  Beard  v.  Linthicum,  1  Md. 
Ch.  Dec.   345;    Chesapeake   &    Ohio  Canal  Co.  v.   Young,  3  Md.  480; 
Wingate  r.  Dail,  2  Harr.  &  J.  (Md.)  76;  Rowton  v.  Rowton,  1  Hen.  &  M. 
(Va.)  92;  Thomson  v.  Scott,   1   McCord  (S.  C.)  Ch.  32;  Church  of  the 
Advent  r.  Farrow,  7  Rich.  (S.  C.)  Eq.  378;   Goodwin   v.  Lyon,  4  Port. 
(Ala.)  297;  Kay  v.  Curd,  6  B.  Mon.   (Ky.)   100;  Newnan   r.  Carroll, 
3  Yerg.  (Tenn.)  18 ;  Shirley  v.  Spencer,  4  Gilm.  (Til.)  583  ;  Eyre  r.  Eyre, 
19  N.  J.  Eq.    102;  Petrick  v.   Ashcroft,    19  N.   J.    Eq.    339;  Force  v. 
Dureher,   18  N.  J.  Eq.  401;   Purcell  v.  Miner,  4  Wall.   (U.    S.)  513; 
Williams   v.  Williams,   7  Reporter.  656;    Hart  v.    Carroll,    85    Pa.  St. 
508:  Wright  v.  Pucket,  22  Grat.  (Va.)  370;    Williams    v.   Morris,   95 
U.    S.   444;    Nay   v.  Mograin,    24   Kansas  »75;    Cutsinger  r.  Ballard, 
115  Tnd.  93 ;   Lords  Appeal,   105  Pa.  St.  451 ;  Wagonblast  ».  Whitney, 
12  Oregon,  83;  Vose  r.  Strong.  144  111.  108  ;  Alba  v.  Strong,  94  Ala.  163; 
Vose  v.  Strong,  45  111.  App.  Ct.  98. 


614  STATUTE   OF  FRAUDS.  [CH.   XIX. 

eral  rules.  But  it  may  be  remarked  that  mere  contrariety 
in  the  proofs  adduced  will  not  prevent  the  courts  from  decree- 
ing the  execution  of  the  agreement;  their  principle  is,  to 
collect  from  the  proofs,  if  they  can,  what  the  terms  of  the 
agreement  really  are.1 

§  495.  In  some  of  the  earlier  cases,  this  principle  was 
applied  with  extreme  liberality.  In  an  anonymous  case 
reported  by  Yiner,  where  a  man  entered  and  built  upon  cer- 
tain land  upon  the  faith  of  the  defendant's  having  told  him 
that  his  word  was  as  good  as  his  bond,  and  promised  him  a 
lease  when  he  received  his  own  from  the  landlord,  but  the 
terms  of  the  lease  to  be  given  were  not  proved,  it  appears 
that  Lord  Chancellor  Jeffries  decreed  a  lease  to  the  plaintiff, 
notwithstanding  the  uncertainty  in  the  terms;  for  he  con- 
sidered that  it  was  in  the  plaintiff's  election,  for  what  time 
he  would  hold  the  land,  and  he  elected  to  hold  during  the 
defendant's  term  at  the  old  rent.2  The  proceeding  of  the 
court  in  this  case  appears  to  have  been,  as  Judge  Story 
remarks,  to  frame  "  a  contract  for  the  parties,  ex  cequo  et 
bono,  where  it  found  none."3 

§  496.  Again,  it  would  seem  to  have  been  formerly  an 
approved  rule,  where  there  was  no  proof,  or  insufficient 
proof,  of  the  contract  before  the  court,  to  send  the  case  to  a 
Master  to  ascertain  what  the  terms  of  the  contract  were. 
Lord  Eldon  mentions  a  case  as  having  occurred  before  Lord 
Thurlow,  where  "  possession  having  been  delivered  in  pursu- 
ance of  a  parol  agreement,  and  a  dispute  arising  upon  the 
terms  of  the  agreement,  Lord  Thurlow  thought  proper  to 
send  it  to  the  Master,  upon  the  ground  of  the  possession 

1  Mundy  v.  Jolliffe,  5  Myl.  &  C.  177;  Boardman  r.  Mostyn,  6  Ves. 
467;  Burns  v.  Sutherland,  7   Pa.   St.   103;  Rhodes  v.  Rhodes,  3  Sandf. 
(N.  Y.)  Ch.  279.     In  Pennsylvania  it  is   held  that  a  stricter  rule  of 
proof  should  be  applied  in  cases  of  agreements  between  members  of  the 
same   family.     See  Ackerman  v.  Fisher,  57  Pa.    St.  457;    Edwards  v. 
Morgan,  100  Pa.  St.  330. 

2  5  Vin.  Abr.  523,  pi.  40. 
8  Story,  Eq.  Jur.  §  764. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  615 

being  delivered,  to  inquire  what  the  agreement  was.  The 
difficulty  there  was  in  ascertaining  that.  The  Master  decided 
as  well  as  he  could,  and  then  the  case  came  on  before  Lord 
Rosslyn,1  upon  farther  directions;  who  certainly  seemed  to 
think  Lord  Thurlow  had  gone  a  great  way;  and  either  drove 
them  to  a  compromise,  or  refused  to  go  on  with  the  decree 
upon  the  principle  on  which  it  was  made."  2  Lord  Thurlow, 
nevertheless,  adhered  to  the  same  course  in  the  subsequent 
case  of  Allan  v.  Bower,  where  it  appeared  that  there  was  an 
oral  agreement  by  the  defendant's  testator  to  give  the  plain- 
tiff a  lease  of  certain  premises.  His  Lordship  directed  the 
Master,  who  had  refused  to  admit  parol  evidence,  to  ascer- 
tain and  report  what  the  promise  was,  at  what  time  it  was 
made,  and  what  interest  the  tenant  was  to  acquire  under  it 
in  the  premises;  upon  which  order  evidence  was  received, 
proving  that  the  tenant  was  to  hold  during  his  life,  and  a 
lease  was  decreed  to  be  executed  accordingly.3  And  so  Lord 
Redesdale,  in  a  case  where  a  written  agreement  for  a  lease 
was  held  imperfect,  as  not  showing  the  term  for  which  it 
was  to  be  granted,  said  that  if  there  had  been  evidence  of 
part-performance  he  must  have  directed  a  further  inquiry, 
the  bill  not  suggesting  any  specific  term  of  lease,  and  the 
pleadings  and  evidence  being  both  silent  on  that  point.4 

§  497.  Lord  Eldon's  remarks,  just  quoted,  show  a  strong 
bias  on  his  part  against  the  freedom  exercised  in  the  cases 
referred  to,  in  obtaining  proof  of  the  terms  of  the  contract. 
And  subsequent  decisions  show  that  the  same  view  is  gain- 
ing ground  with  the  courts.  Lord  Chancellor  Manners  has 
very  clearly  indicated  what  may  be  considered  at  this  day 
the  prevailing  doctrine.  "  Where  there  is  contradictory  evi- 
dence in  a  case  that  raises  a  doubt  in  the  mind  of  the  court, 
that  is  to  say,  where  the  case  is  fully  proved  by  the  party  on 

1  Lord  Lough  borough,  afterward  created  Earl  of  Rosslyn. 

2  Per  Lord  Eldon,  in  Boardman  v.  Mostyn,  6  Ves.  479. 
8  Allan  r.  Bower,  3  Bro.  C.  C.  149. 

4  Clinan  v.  Cooke,  1  Schoales  &  L.  22;  Weaver  p.  Shipley,  127  Ind. 
526. 


616  STATUTE   OF   FRAUDS.  [CH.    XIX. 

whom  the  onus  of  proof  lay ;  but  that  proof  shaken,  or  ren- 
dered doubtful,  by  the  evidence  on  the  other  side ;  there  the 
court  will  direct  a  reference  or  an  issue  to  ascertain  the  fact ; 
but  where  there  is  no  evidence  whatever,  would  it  not  be 
introducing  all  the  mischiefs  intended  to  be  guarded  against 
by  the  rules  of  the  court,  in  not  allowing  evidence  to  be  gone 
into  after  publication,  and  holding  out  an  opportunity  to  a 
party  to  supply  the  defect  by  fabricated  evidence,  if  I  were 
to  direct  such  an  inquiry  ?  I  therefore  do  not  think  myself 
at  liberty,  from  the  evidence  in  this  case,  to  direct  the 
reference  or  issue  desired."1 

§  498.  The  third  and  last  of  those  classes  of  cases  in  which 
courts  of  equity  enforce  verbal  agreements,  notwithstanding 
the  Statute  of  Frauds,  is  where  the  agreement,  fully  set  forth 
in  the  bill,  is  confessed  by  the  answer.2  The  reason  upon 
which  this  rule  is  generally  said  to  rest  is,  that  the  statute 
is  only  intended  to  prevent  fraud  and  perjury,  the  danger  of 
which  is  wholly  removed  by  the  defendant's  admission.  But, 
as  we  shall  hereafter  see,  it  is  settled  that  the  defendant, 

1  Savage  v.  Carroll,  1  Ball  &  B.  283.     See  also  Boardman  v.  Mostyn, 
6  Ves    467;  Reynolds  v.  Waring,  Younge,  346;  Story,  Eq.  Jur.  §764; 
Sugden,  Vend.  &  P.  150;  Wallace  v.  Brown,  10  N.  J.  Eq.  308. 

2  Attorney-General  v.  Day,  1  Ves.  Sr.  218;  Croyston  v.  Banes,  1  Eq. 
Gas.  Abr.  19;  s.  c.  Finch,  Free.  Ch.  208;  Symondson  v.  Tweed,  Finch, 
Free.  Ch.  374 ;  Lacon  v.  Mertins,  3  Atk.  1 ;  Cottington  v.  Fletcher,  2  Atk. 
155;  Gunter  v.  Halsey,  2  Arab.   586;  Child  r.  Godolphin,   1  Dick.  39; 
Whitchurch  v.   Bevis,  2  Bro.  C.   C.  559;  Spurrier  v.  Fitzgerald,  6  Ves. 
555  ;  Cooth  v.  Jackson,  6  Ves.  12 ;  Attorney-General  r.  Sitwell,  1  Younge 
&  C.   (Exch.)   583;  Harris  ».  Knickerbacker,   5  Wend.   (N".   Y.)    638; 
Argenbright  v.  Campbell,   3  Hen.    &   M.   (Va.)   144;    Hollingshead  v. 
McKenzie,  8  Ga.  457;  Ellis  v.  Ellis,  1  Dev.  (N.  C.)  Eq.  341;  Switzer  v. 
Skiles,  3  Gilm.  (111.)  529;  Dyer  v.  Martin,  4  Scam.  (111.)  146;  Woods  v. 
Dille,  11  Ohio,  455;  McGowen  v.  West,  7  Mo.  569;  Artz  v.  Grove,  21 
Md.  456 ;  Burt  P.  Wilson,  28  Cal.  632.     In  Pennsylvania,  it  has  been 
held,  on  the  strength  of  the  principle  of  this  rule,  that  a  mortgagee  could 
not,  in  an  action  at  law,  avail  himself  of  the  Statute  of  Frauds  to  resist 
the  enforcement  of  a  prior  trust  agreement  concerning  the  land,  -which 
was  acknowledged  by  the  owner  of  the  reversion.     Houser  v.  Lamont,  55 
Pa.  St.  311 ;  Bennett  v.  Tiernay,  78  Ky.  580 ;  Connor  v.  Hingtgen,  19 
Neb.  472 ;  Brakefield  t>.  Anderson,  87  Tenn.  206. 


CH.   XIX.]        VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  617 

notwithstanding  such  admission,  may  insist  upon  the  statute, 
and  thus  defeat  any  recovery  upon  the  agreement,  —  a  rule 
with  which  the  reason  just  alluded  to  does  not  seem  to  be 
altogether  consistent.  For  if  the  removing  of  all  danger  of 
perjury,  by  having  the  defendant  admit  the  agreement,  does 
in  fact  take  the  case  out  of  the  intent  of  the  statute,  his  sub- 
sequent reliance  upon  the  statute  of  course  cannot  avail  him. 
And  it  may  have  been  with  this  view  that  Lord  Bathurst 
held  that,  though  admitted  by  the  defendant,  a  verbal  agree- 
ment within  the  statute  could  not  be  enforced,  and  that  to 
do  so  would  be  to  repeal  the  statute.1  The  same  difficulty 
opposes  itself  to  what  Mr.  Justice  Story  has  suggested  as 
another  reason  which  might  perhaps  be  adduced  in  support 
of  the  general  rule  we  are  considering;  namely,  that  after 
admission  by  the  defendant,  the  agreement,  though  originally 
by  parol,  was  now  in  part  evidenced  by  writing  under  the 
signature  of  the  party,  which  was  a  complete  compliance 
with  the  terms  of  the  statute.2  In  a  late  case  in  Maryland,  it 
was  urged  that  an  answer  filed  by  a  defendant,  admitting  an 
agreement,  and  not  setting  up  the  statute,  could  be  read 
against  his  creditors  afterward  coming  in  to  resist  the  decree 
for  specific  execution,  as  itself  a  memorandum;  but  the 
Chancellor  held  that  it  could  not,  and  strongly  dissented 
from  Judge  Story's  suggestion  above  referred  to.3  Upon  the 
whole,  the  soundest  reason  which  can  be  assigned  for  this 
rule,  imprFirnably  settled  as  it  is  by  authority,  seems  to  be 
that  the  defendant,  having  admitted  the  agreement  charged, 
if  he  does  not  insist  upon  the  statute,  is  taken  to  renounce 
the  benefit  of  it;  the  maxim,  quisque  renuntiare  potest  juri 
pro  se  introducto,  being  applicable  to  such  a  case.4 

1  Popham  v.  Eyre,  Lofft,  786. 

9  Story,  Eq.  Jur.  §  755. 

8  Winn  v.  Albert,  2  Md.  Ch.  Dec.  169.  Affirmed  on  appeal,  nom 
Albert  v.  Winn,  5  Md.  66. 

4  Newland  on  Contracts,  c.  10,  p.  201 ;  1  Fonbl.  Eq.  Bk.  1,  c.  3,  §  8, 
note  d ;  Rondeau  p.  Wyatt,  2  H.  Bl.  63  ;  Spurrier  v.  Fitzgerald,  6  Ves 
548  ;  Adams  t>.  Patrick,  30  Vt.  516. 


618  STATUTE   OF  FRAUDS.  [CH.   XIX. 

§  499.  Where  the  defendant,  having  appeared  to  the  suit, 
makes  default  in  filing  his  answer,  and  the  bill  is  taken  pro 
confesso,  it  should  seem,  and  has  been  held  in  New  Hamp- 
shire, that  it  amounted  to  an  admission  of  the  contract 
charged,  so  as  to  entitle  the  plaintiff  to  a  decree.1  Where 
the  defendant  has  once  admitted  the  contract  as  charged,  he 
cannot  afterward,  when  the  plaintiff  has  amended  his  bill  in 
a  matter  not  going  to  the  substance  of  the  contract,  retract 
his  admission.2  And  the  same  rule  seems  to  hold,  where 
the  plaintiff  afterward  comes  in  for  a  decree,  upon  a  bill 
amended  by  permission  so  as  to  cover  an  agreement  which 
the  defendant  in  his  answer  had  confessed.3  And  if  the 
defendant,  after  having  admitted  the  agreement,  should  die 
before  a  decree,  upon  a  bill  of  revivor  against  the  heir,  a 
specific  performance  by  him  would  be  decreed;  for  the  prin- 
ciple goes  throughout,  and  binds  the  representative  as  well 
as  the  ancestor.4 

§  500.  An  important  question,  having  a  near  relation  to 
the  point  we  are  now  considering,  has  received  the  attention 
of  Mr.  Baron  Alderson,  namely,  whether  a  court  of  equity, 
upon  a  bill  filed  for  that  purpose,  will  first  reform  a  written 
agreement  for  real  estate,  so  as  to  embrace  or  exclude  certain 
property,  and  then  enforce  it  as  reformed,  the  mistake  being 
admitted  by  the  answer.  In  the  case  before  him,  the  answer 
did  not  admit  the  mistake,  and  the  learned  Baron  thought  it 
clear  that  he  could  not  decree  a  performance,  after  reform- 
ing the  agreement  by  parol  evidence  admitted  for  that  pur- 
pose. But  upon  the  hypothesis  of  the  answer's  admitting 
the  mistake,  he  says:  "The  case  might  have  fallen  within 
the  principle  of  those  cases  at  law  where  there  is  a  declara- 
tion on  an  agreement  not  [?]  within  the  statute,  and  no  issue 
taken  upon  the  agreement  by  the  plea;  because  in  such  a 

1  Newton  v.  Swazey,  8  N.  H.  9.     See  James  v.  Rice,  Kay,  Ch.  231 ; 
Esmay  v.  Groton,  18  111.  483  ;  Angel  v.  Simpson,  85  Ala.  53. 

2  Spurrier  v.  Fitzgerald,  6  Ves.  548. 
8  Patterson  v.  Ware,  10  Ala.  444. 

4  Attorney-General  v.  Day,  1  Ves.  Sr.  218;  Laconr.  Mertins,  3  Atk.  1. 


CH.  XIX.]   VERBAL  CONTRACTS  ENFORCED  IN  EQUITY.      619 

case  it  would  seem  as  if,  the  agreement  of  the  parties  being 
admitted  by  the  record,  the  case  would  no  longer  be  within 
the  statute.  I  should  then  have  taken  time  to  consider 
whether,  according  to  the  dicta  of  many  venerable  judges,  I 
should  not  have  been  authorized  to  reform  an  executory 
agreement  for  the  conveyance  of  an  estate,  when  it  was 
admitted  to  have  been  the  intention  of  both  parties  that  a 
portion  of  the  estate  was  not  to  pass."1 

§  501.  The  general  rule  is  undoubtedly  clear,  that  in  order 
to  entitle  the  plaintiff  to  the  benefit  of  the  agreement  admit- 
ted by  the  answer,  it  must  appear  to  be,  in  all  its  essential 
terms,  the  same  with  that  charged  in  the  bill ; 2  although  an 
immaterial  variation  would  not  be  regarded,  and  although, 
in  certain  cases,  a  plaintiff  may  be  allowed  to  amend  his  bill 
after  answer,  in  order  to  avail  himself  of  the  agreement 
admitted  by  it,  or  at  least,  may  have  his  bill  dismissed, 
without  prejudice  to  his  filing  a  new  bill  adapted  to  such 
admitted  agreement.3  And  it  has  been  held  by  Sir  William 
Grant,  at  the  Rolls,  that  the  rule  denying  to  the  plaintiff  a 
decree  for  the  execution  of  a  different  sort  of  agreement,  an 
agreement  of  a  different  import  or  tendency  from  that  laid, 
was  not  infringed  by  allowing  the. plaintiff,  who  alleged  a 
written  agreement,  the  benefit  of  the  defendant's  admission 
that  such  an  agreement  was  made,  though  by  parol ;  remark- 
ing that  the  difference  between  a  written  and  a  parol  agree- 
ment consisted  in  the  mode  in  which  they  were  evidenced, 
an  objection  which  did  not  at  all  depend  on  the  Statute  of 


1  Attorney-General  r.   Sitwell,  1  Younge  &  C.  583.     That  a  Court  of 
Equity  may  reform  a  deed  of  land,  and  compel  the  conveyance  of  the 
land  agreed  upon,  though  only  by  parol,   see  Johnson   v.   Johnson,  8 
Baxter  (Tenn.)  261. 

2  Legal  v.  Miller,  2  Ves.  Sr.  299;  Legh  v.  Haverfield,  5  Ves.  452; 
Willis  r.  Evans,  2  Ball  &  B.  225  ;  Lindsay  v.  Lynch,  2  Schoales  &  L.  1  ; 
Harris  v.  Knickerbacker,  5  Wend.  (N.  Y.)  638. 

8  Lindsay  v.  Lynch,  2  Schoales  &  L.  1 ;  Harris  v.  Knickerbacker,  5 
Wend.  (N.  Y.)  638*;  Willis  v.  Evans,  2  Ball  &  B.  225;  Deniston  v.  Little, 
2  Schoales  &  L.  11,  note;  Pleasonton  v.  Raughley,  3  Del.  Ch.  124. 


620  STATUTE   OF  FEAUDS.  [CH.    XIX. 

Frauds.1  It  may  be  a  question  whether  proof  of  acts  of  part- 
performance  in  the  case  makes  it  an  exception  to  the  general 
rule  above  referred  to.  In  Mortimer  v.  Orchard,  where  the 
bill  stated  a  certain  agreement,  the  complainant's  witness 
proved  a  different  one,  and  the  two  defendants  by  their 
answer  set  up  an  agreement  which  differed  from  both,  Lord 
Loughborough  thought  the  bill  should  in  strictness  be  dis- 
missed, but,  as  there  had  been  a  part  execution  of  some 
agreement  between  the  parties,  and  there  were  two  defendants 
who  proved  the  agreement  set  up  by  their  answer,  he  decreed 
a  specific  performance  of  the  agreement  confessed  by  the 
answers,  and  required  the  plaintiff  to  pay  the  costs.2  His 
Lordship,  it  would  seem,  did  not  come  to  that  conclusion 
altogether  without  difficulty,  and  the  doctrine  of  the  case 
appears  to  conflict  with  the  established  rule  in  regard  to 
part-performance,  that  it  must  appear  to  be  in  pursuance  of 
the  contract  upon  which  relief  is  to  be  granted. 

§  502.  The  authority  of  this  case  would  seem  to  be  some- 
what shaken  by  the  decision  of  Lord  Redesdale,  in  Lindsay 
v.  Lynch.3  There,  the  plaintiff,  having  been  previously  in 
possession  of  certain  premises,  alleged  a  parol  agreement  by 
the  lessor  to  give  him  a  further  lease  for  three  lives.  The 
lessor  defendant,  by  his  answer  admitted  an  agreement  to 
give  him  a  further  lease  for  one  life,  whereupon  the  plaintiff 
amended  his  bill,  claiming  still  the  lease  for  three  lives,  but 
praying,  in  the  alternative,  that  if  that  was  not  decreed,  he 
might  have  the  lease  for  one  life.  The  plaintiff  showed  pay- 
ment of  rent  after  the  agreement  made,  as  an  act  of  part-per- 
formance. Lord  Redesdale  said,  that  if  there  had  been  acts 
of  considerable  expenditure,  he  could  do  no  more  than  was 
done  in  the  case  before  Lord  Loughborough,  just  referred  to. 
He  then  observed  that  as  the  payment  of  rent  was  an  act 
which  might  be  in  part  execution  of  a  lease  for  one  life,  as 

1  Spurrier  v.  Fitzgerald,  6  Ves.  548. 

2  Mortimer  v.  Orchard,  2  Ves.  Jr.  243. 
8  Lindsay  v.  Lynch,  2  Schoales  &  L.  1. 


CH.    XIX.]       VERBAL   CONTRACTS   ENFORCED   IN   EQUITY.  621 

well  as  of  a  lease  for  three,  there  was  no  ground  for  admit- 
ting parol  evidence  of  the  latter,  the  agreement  charged  in 
the  bill ;  and  he  refused,  in  view  of  the  course  the  plaintiff 
had  taken  in  pleading,  to  allow  him  to  amend  so  as  to  obtain 
a  decreee  for  a  lease  for  one  life,  but  dismissed  the  bill 
without  prejudice  to  his  filing  a  new  one  for  that  purpose. 
Although  Lord  Loughborough's  decision  is  not  in  terms 
questioned  by  Lord  Redesdale,  yet  he  seems  to  speak  of  it 
with  some  uncertainty  as  to  its  correctness ;  and  it  will  be 
observed  that  the  payment  of  rent  was  admitted  here  to  be 
an  act  in  part  execution  of  some  agreement,  as  in  the  case 
before  Lord  Lough  borough. 


622  STATUTE  OF  FRAUDS.  [CH.  XX 


CHAPTER  XX. 

PLEADING. 

§  503.  WE  have  now  to  examine,  in  conclusion  of  this 
treatise,  certain  points  of  pleading  which  have  presented 
themselves,  some  of  them  involving  no  little  difficulty,  in 
cases  decided  upon  the  Statute  of  Frauds.  And  in  so  doing, 
it  will  be  convenient  to  inquire,  first,  how  the  declaration  or 
bill  should  be  framed,  and,  secondly,  when  and  how  the 
defence  upon  the  statute  may  be  taken. 

§  504.  We  have  seen  that  in  cases  where  the  plaintiff  is 
allowed  to  recover  for  money  paid,  services  rendered,  etc., 
in  pursuance  of  a  verbal  contract,  upon  which,  as  being 
within  the  statute,  he  cannot  maintain  an  action  directly  for 
damages,  he  must  claim  upon  the  implied  obligation  of  the 
defendant  to  give  compensation  for  what  he  has  received.1 
On  the  other  hand,  where  he  brings  an  action  upon  the  con- 
tract of  which  a  memorandum  in  writing  has  been  duly  exe- 
cuted, his  count  must  of  course  be  special,  relying  upon  the 
contract  itself.2 

§  505.  It  is  now  well  settled  in  this  country,  that  in  a  suit 
at  law  or  in  equity  upon  a  contract  affected  by  the  statute, 
the  declaration  or  bill  will  be  sufficient  if  it  allege  a  contract 
generally,  without  stating  whether  it  is  in  writing  or  not. 
In  a  case  in  Massachusetts,  the  declaration,  after  setting 
forth  that  one  F.  owed  the  plaintiff  the  sum  of  sixteen  dollars 

1  Ante,  §  124. 

2  Babcock  v.  Bryant,  12  Pick.  (Mass.)  133;  Quin  v.   Hanford.  1  Hill 
(N.  Y.)  82 ;  Beers  v.   Culver,  1  Hill  (N.  Y.)   589 ;  Elder  r.  Warfield,  7 
Harr.  &  J.  (Md.)  301  ;  Wagnon  v.   Clay,  1  A.  K.  Marsh.  (Ky.)  257; 
Louisville  Prize  Mining  Co.  v.  Scudder,  3  Col.  152. 


CH.    XX.]  PLEADING.  623 

for  labor  and  services  performed  by  him  for  F.,  and  that  he 
was  about  to  sue  F.  therefor,  alleged  "  that  the  defendant,  in 
consideration  that  the  plaintiff  would  forbear  to  sue  the  said 
F.,  promised  and  agreed  to  pay  the  same  to  the  plaintiff,  and 
the  plaintiff  did  forbear  to  sue  the  said  F.,  and  the  defendant 
owes  him  the  said  sum. "  To  this  declaration  the  defendant 
demurred,  assigning  for  cause  "that  the  defendant's  promise 
was  void,  as  within  the  Statute  of  Frauds,  it  being  to  answer 
for  the  debt  or  default  of  another,  and  no  agreement  in  writ- 
ing or  memorandum  thereof  was  ever  made  or  signed  by  the 
defendant,  nor  is  any  copy  of  any  agreement  set  out  by  the 
plaintiff  in  his  declaration. "  The  lower  court  overruled  the 
demurrer,  and  on  appeal  their  judgment  was  sustained  by 
the  full  bench.  Metcalf,  J.,  delivering  the  opinion  of  the 
court,  said :  "  As  this  demurrer  contains  a  traverse  or  denial 
of  facts,  it  is  wrong  in  form.  But  we  do  not  overrule  it  for 
that  reason.  We  treat  it,  as  the  counsel  for  the  defendant 
treated  it,  namely,  as  a  demurrer  because  the  declaration, 
though  it  sets  forth  an  agreement  which  is  within  the  Statute 
of  Frauds,  does  not  allege  that  the  agreement  was  in  writing. 
This,  however,  is  not  a  legal  cause  for  demurrer.  The  Stat- 
ute of  Frauds  has  not  altered  the  rules  of  pleading,  in  law 
or  equity.  A  declaration  on  a  promise  which,  though  oral 
only,  was  valid  by  the  common  law,  may  be  declared  on  in 
the  same  manner,  since  the  statute,  as  it  might  have  been 
before.  The  writing  is  matter  of  proof,  and  not  of  alle- 
gation. " 1 

1  Price  v.  Weaver,  13  Gray  273;  and  see  Kibby  r.  Chitwood,  4  T.  B. 
MOD.  (Ky.)  91 ;  Dayton  v.  Williams,  2  Doug.  (Mich.)  31  ;  Richards  r. 
Richards,  9  Gray  (Mass.)  313;  Sanborn  r.  Chamberlin,  101  Mass.  409; 
Mullaly  v.  Holden,  123  Mass.  583;  Carroway  v.  Anderson,  1  Humph. 
(Tenn.)  61 ;  Elting  v.  Vanderlyn,  4  Johns.  (N.  Y.)  237  ;  Piercy  ».  Adams, 
22  Ga.  109;  Walker  p.  Richards,  39  N.  H.  259;  Perrine  ».  Leachman,  10 
Ala.  140;  Brown  v.  Barnes,  6  Ala.  694;  Miller  v.  Drake,  1  Caines  (N.  Y.) 
45;  Elliott  v.  Jenness,  111  Mass.  29;  Cross  v.  Evarts,  28  Tex.  523; 
Walsh  v.  Kattenburgh,  8  Minn.  127  ;  Cranston  v.  Smith,  6  R.  I.  231 ; 
Burkham  ??.  Mastin,  54  Ala.  122;  Ecker  v.  Bohn,  45  Md.  278.  Contra,  by 
Indiana  statute,  Langford  v.  Freeman,  60  lud.  46;  Krohn  v.  Bautz,  68 


624  STATUTE   OF   FRAUDS.  [CH.    XX. 

§  505  a.  In  England,  however,  the  doctrine  was  not  defi- 
nitely settled  until  the  promulgation,  in  1875,  of  the  Rules 
and  Orders  concerning  Pleading  and  Practice  under  the 
"Supreme  Court  of  Judicature  Act."1  In  Whitchurch  v. 
Bevis,  in  1789,  Lord  Thurlow  said,  speaking  of  the  case  of 
Child  v.  Godolphin,  before  Lord  Macclesfield : 2  "If  the  bill 
had  stated  the  agreement  generally,  a  demurrer  might  have 
been  allowed,  but  where  the  agreement  is  stated  to  be  in 
writing,  the  plea  must  be  supported  by  the  answer. " 3  In 
Spurrier  v.  Fitzgerald,  the  Master  of  the  Rolls,  Sir  William 
Grant,  after  citing  this  passage,  says:  "That  shows  that,  if 
the  plaintiff  alleges  a  written  agreement,  the  defendant  will 
be  reduced  to  the  necessity  of  pleading."4  In  the  case  of 

Ind.  277 ;  and  see  Babcock  v.  Meek,  45  Iowa  137 ;  Harris  Photo.  Co.  v. 
Fisher,  81  Mich.  136;  Benton  v.  Schulte,  31  Minn.  312;  Dexter  v. 
Ohlander,  89  Ala.  262;  Lehow  v.  Simonton,  3  Col.  346;  Tucker  v.  Ed- 
wards, 7  Col.  209 ;  Groce  v.  Jenkins,  28  S.  C.  172;  Horn  v.  Shamblin,  57 
Texas  243;  Broder  t».  Conklin,  77  Cal.  330;  McCann  v.  Pennie,  100  Cal. 
547;  Manter  v.  Churchill,  127  Mass.  31;  Vassault  v.  Edwards,  43  Cal. 
458;  Mallory  v.  Mallory,  92  Ky.  316;  Smith  v.  Theobald,  86  Ky.  141. 

1  36  &  37  Viet.  cap.  66 ;  amended  37  &  38  Viet.  cap.  83  ;  and  38  & 
39  Viet.  cap.  77,  under  which  last  the  first  schedule  prescribes  certain 
rules  of  court.     Order  xix.,  p.  23,  of  these  rules  prescribes  that  after  No- 
vember 1,  1875,  a  "  bare  denial  of  the  contract  by  the  opposite  party  shall 
be  construed  only  as  a  denial  of  the  making  of  the  contract  in  fact,  and 
not  of  its  legality  or  its  sufficiency  in  law,  whether  with  reference  to  the 
Statute  of  Frauds  or  otherwise."     In  Catling  ?/.  King,  5  Ch.  Div.  660,  in 
1876,  the  judges  of  the  Chancery  Appeals  Court  intimated  that,  under 
this  rule,  the  defence  of  the  statute  could  not  be  raised  by  demurrer,  and 
in  Towle  v.  Topham,  37  L.  T.  N.  s.  309.  Jessel,  M.  R.,  said,  "  The  first 
objection  is  that  the  contract  did  not  contain  all  that  was  necessary ;  and 
that  by  the  Statute  of  Frauds  such  a  contract  cannot  be  enforced.     To 
that  the  answer  is  that  if  the  Statute  of  Frauds  is  relied  on  it  must  be 
pleaded.     That  was  decided  by  the  Court  of  Appeals  (of  which  I  was  a 
member)  in  Catling  v.  King."     See  this  same   rule   xix.  noticed  post, 
§  511,  note.     Tn  Daniell's  Chancery  Practice,  5th  London  ed.  1871,  p.  306, 
it  is  stated  that  "  in  a  bill  for  specific  performance  of  an  agreement  re- 
lating to  land,  it  is,  however,  necessary  to  allege  that  the  agreement  is  in 
writing,  otherwise  the  bill  will  be  demurrable." 

2  Child  v.  Godolphin,  1  Dick.  39. 

8  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  566. 
4  Spurrier  v.  Fitzgerald,  6  Ves.  555. 


CH.    XX.]  PLEADING.  625 

Barkworth  v.  Young,  in  1856,  Vice  Chancellor  Kindersley, 
after  citing  the  foregoing  cases,  said :  "  A  verbal  agreement 
is  still  an  agreement;  you  cannot,  from  a  mere  allegation  of 
an  agreement,  infer  or  presume  that  it  was  in  writing ;  and 
as  the  fact  that  it  was  in  writing  is  neither  expressly  alleged 
in  the  bill,  nor  necessarily  to  be  inferred  or  presumed  from 
what  the  bill  does  allege,  the  mere  allegation  of  an  agree- 
ment amounts  to  nothing  more  than  the  allegation  of  a 
verbal  agreement,  and  then  the  defence  may  be  made  by 
demurrer.  I  think  this  view  is  strongly  supported."  In 
the  case  before  him,  however,  as  the  bill  set  out  in  addition 
a  sufficient  memorandum  of  the  agreement,  which  was  one 
in  consideration  of  marriage,  he  overruled  the  demurrer.1 
Thus  it  appears  that  in  England  the  general  tendency  of 
judicial  opinion  has  been  against  the  sufficiency  of  a  bill  in 
equity,  unless  it  alleged  that  the  agreement  was  in  writing. 
At  law,  on  the  other  hand,  the  rule  in  England  has  been  (as 
both  in  equity  and  at  law  in  this  country),  that  it  is  suffi- 
cient since  the  statute,  as  it  was  before,  to  allege  an  agree- 
ment generally,  which  throws  it  on  the  defendant  to  allege 
that  it  is  not  in  writing.2 

§  506.  A  distinction  has  been  taken,  in  regard  to  the  obli- 
gation to  allege  a  writing,  between  the  cases  where  the  con- 
tract is  declared  on  by  the  plaintiff  and  where  it  is  pleaded 
by  the  defendant.  In  the  Queen's  Bench,  four  years  after 
the  enactment  of  the  Statute  of  Frauds,  where  a  contract  of 
guaranty  was  set  up  in  defence,  and  the  plea  did  not  allege 
it  to  be  in  writing,  and  the  plaintiff  demurred,  the  demurrer 
was  allowed,  on  two  grounds,  one  of  which  was  that  "  though 

1  Barkworth  v.  Young,  26  L.  J.  N.  8.  Ch.  156.     And  see  Jerdein  t;. 
Bright,  2  Johns.  &  H.  325. 

2  Spurrier  v.  Fitzgerald,  6  Ves.  555,  per  Grant,  M.  R. ;  Roberts  on 
Frauds,  202;  Buller,  N.  P.  270;  Williams  v.  Leper,  3  Burr.  1890;  Forth 
v.  Stanton,  1  Wms.  Saund.  226,  note;  Duppa  i».  Mayo,   1  Wms.  Saund. 
380,  note;  Birch  v.  Bellamy,  12  Mod.  540  ;  Rann  v.  Hughes,  7  T.  R.  350, 
note;  Clarke  v.  Callow,  46  L.  J.  Q.  B.  Div.  53,  per  Mellish,  L.  J. ;  Young 
v.  Austen,  L.  R.  4  C.  P.  553. 

40 


626  STATUTE   OF  FRAUDS.  [CH.   XX. 

upon  such  an  agreement  the  plaintiff  need  not  set  forth  the 
agreement  to  be  in  writing,  yet  when  the  defendant  pleads 
such  an  agreement  in  bar,  he  must  plead  it  so  as  it  may 
appear  to  the  court,  that  an  action  will  lie  upon  it,  for  he 
shall  not  take  away  the  plaintiff's  present  action  and  not  give 
him  another  upon  the  agreement  pleaded."1  It  will  be 
observed,  however,  that  the  plea  being  held  bad  also  upon 
another  ground,  the  case  is  not  decisive  of  the  point  above 
quoted.  And  it  seems  the  rule  does  not  apply  where  the 
plea  is  of  title,  in  the  party  pleading  and  as  against  the  other 
party  claiming  adversely,  in  property  for  the  sale  of  which 
the  statute  makes  a  writing  necessary.  Thus,  where  the 
plaintiff  in  replevin  for  growing  corn  pleaded  a/,  fa.  under 
which  the  sheriff  seized  the  corn  and  sold  it  to  the  plaintiff, 
who  thus  became  possessed  of  the  same,  and  the  defendant 
contended  that  the  plea  was  bad  as  not  alleging  that  the  sale 
was  in  writing,  it  is  reported  that  the  courts  were  against 
him  on  that  point,  and  observed  that  assignments  of  terms 
of  years  were  commonly  pleaded  without  a  statement  of  any 
writing.2 

§  507.  Where  a  plaintiff  in  equity  seeks  the  specific  per- 
formance of  an  oral  agreement,  having  no  writing,  but  rely- 
ing upon  the  peculiar  power  of  a  court  of  equity,  he  should 
specially  allege  all  the  equitable  circumstances  existing  in 
his  case,  such  as  part-performance  and  the  like,  upon  which 
he  intends  to  rely  to  avoid  the  bar  of  the  statute  and  give 
the  court  of  equity  its  jurisdiction.3  According  to  the  sys- 
tem of  equity  pleading  which  once  prevailed,  it  would  have 
been  sufficient  for  the  plaintiff  to  allege  the  agreement,  and 
then,  if  the  defendant  pleaded  the  statute,  he  might  specially 
reply  the  equitable  circumstances  to  meet  that  plea.  Now 

1  Case  v.  Barber,  T.  Raym.  451.     See  Villers  v.  Handley,  2  Wils.  49; 
Young  v.  Austen,  L.  R.  4  C.  P.  553,  558. 

2  Peacock  v.  Purvis,  2  Brod.  &  B.  362. 

«  Small  v.  Owings,  1  Md.  Ch.  Dec.  363 ;  Meach  v.  Stone,  1  D.  Chip. 
(Vt.)  182;  Underbill  v.  Allen,  18  Ark.  466;  Hart  v.  McClellan,  41  Ala. 
251. 


CII.   XX.]  PLEADING.  627 

that  special  replications  in  equity  are  practically  abolished, 
and  amendments  to  the  bill  after  plea  or  answer  have  taken 
their  place,  the  method  above  suggested  appears  to  be  uni- 
formly pursued,  though  necessitating  an  informality  in  the 
plea. 1  It  does  not  appear  to  have  been  ever  decided  that  acts 
done  in  part-performance  of  the  agreement  must  be  expressly 
alleged  to  have  been  so  done;  but  such  is  the  common  and 
probably  safer  course.2  The  question  of  the  sufficiency  of 
what  is  alleged  to  warrant  a  decree  for  specific  performance 
will  be  raised  by  a  demurrer  to  the  bill.8 

§  507  a.  With  regard  to  the  proper  manner  of  setting  out 
a  trust,  the  enforcement  of  which  is  sought,  it  is  unneces- 
sary to  aver  that  the  trust  was  manifested  or  proved  in 
writing.4 

§  ,508.  Next,  with  regard  to  the  necessity  and  the  manner 
of  taking  advantage  in  pleading  of  the  defence  given  by  the 
statute.  As  to  the  first,  there  seems  to  be  an  important 
difference  between  cases  of  trust  and  cases  of  contract.  In 
the  former,  the  statute  provides  that,  unless  evidenced  as  it 
requires,  the  trust  "shall  be  utterly  void  and  of  none  effect." 
From  this  it  follows;  that  although  the  defence  of  the  statute 
be  not  taken,  a  court  will  still  be  unable  to  give  effect  to  the 
trust  in  the  absence  of  the  evidence  required.  With  regard 
to  contracts,  however,  the  statute  being  regarded  as  not 
affecting  their  validity,  it  is  held  that  unless  the  privilege 
of  requiring  the  statutory  evidence  given  by  it  to  the  party 
resisting  the  enforcement  of  the  contract  is  sufficiently 

1  See  pout,  §  516.  Queers,  whether,  since  the  form  of  pleading  has  be- 
come well  settled  in  these  cases,  an  amendment  would  be  allowed  to  the 
bill,  after  plea  or  answer  setting  up  the  statute,  for  the  introducing  of 
equitable  circumstances. 

a  Meach  v.  Stone,  1  D.  Chip.  (Vt.)  182. 

»  Wood  r.  Midgley,  5  De  G.,  M.  &  G.  41 ;  Bark  worth  v.  Young,  4 
Drew.  1  ;  Howard  v.  Okeover,  3  Swanst.  421 ;  Field  r.  Hutchinson,  1 
Bear.  5')9  ;  Redding  v.  Wilkes,  3  Bro.  C.  C.  400.  See  Van  Dyne  v.  Vree- 
land,  11  X.  J.  Eq.  370. 

4  Davios  r.  Otty,  33  Beav.  ;'40;  Whiting  v.  Gould,  2  Wise.  552;  Per- 
alta  v.  Castro,  6  Cal.  354.  See  Walker  v.  Locke,  5  Cosh.  (Mass.)  90. 


628  STATUTE   OF  FRAUDS.  [CH.   XX. 

claimed  by  him  in  some  proper  pleading,  the  court  will  pro- 
ceed with  the  contract  under  common-law  rules.1  To  this 
rule,  however,  an  exception  must  be  made  where  the  plain- 
tiff sues  on  the  common  counts,  and  therefore  does  not  dis- 
close the  foundation  of  his  case  until  he  puts  in  his  evidence. 
Under  these  circumstances,  the  defendant  will  be  allowed  to 
insist  upon  this  statutory  privilege,  although  his  pleading 
has  not  in  terms  done  so.2 

§  509.  The  defence  of  the  Statute  of  Frauds  may  be  set  up 
by  plea  or  answer;  or,  where  the  structure  of  the  plaintiff's 

1  Middleton  P.  Brewer,  Peake  15 ;    Petrick  v.  Ashcroft,  20  N.  J.  Eq. 
198;  Vaupell  v.  Woodward,  2  Sandf.  (N.  Y.)  Ch.  143;  Talbot  v.  Bowen, 
1  A.  K.  Marsh.  (Ky.)  436;    Adams  v.  Patrick,  30  Vt.    516;  Huffman  v. 
Ackley,  34  Mo.  277;    Trayer  v.  Reeder,  45  Iowa,  272;  Montgomery  v. 
Edwards,  46  Vt.  151;  Newton  v.  Swa/ey,  8  N.  H.  9 ;  Lingan  v.  Hender- 
son, 1  Bland  (Md.)  Ch.  236 ;  Harrison  v.  Harrison,  1  Md.  Ch.  Dec.  331 ; 
Burke  v.   Haley,  2  Gilm.   (111.)   614;  Guynn  v.  McCauley,  32   Ark.  97; 
Thornton  v.  Vaughan,  2   Scam.  (111.)  218 ;    Lawrence  P.  Chase,  54  Me. 
196;  Rigby  v.  Norwood,  34  Ala.  129  ;  Lear  v.  Chouteau,  23  111.  39;  Boston 
v.    Nichols,  47  111.   353;    Milledgeville  Laundry  Co.  v.   Gobert,  89   Ga. 
473;  Iverson  p.   Cirkel,  57  N.  W.  Rep.   (Minn.)  800;  Hamill  v.  Hall, 
35   Pac.  Rep.   (Col.)  927;   Feeney  v.    Howard,  79  Cal.    525;   Lauer  v. 
Richmond  Institution,  8  Utah  305;  Kraft  v.  Greathouse,  1   Idaho  254; 
Browning  v.  Berry,  107  N.  C.  231  ;  League  P.  Davis,  53  Texas  9;   Flem- 
ing P.  Holt,    12   W.  Va.  143;    Penninger  r.  Reilley,  44  Mo.  App.  255; 
Hackworth  P.  Zeitinger,  48  Mo.  App.  32;  Loughran  v.  Giles,  110  N.  C. 
423;  Harner  v.  Sidway,  124  N.  Y.  538;  Hobart  r.  Murray,  54  Mo.  App. 
249;  Neagle  v.  Kelly,  146  111.  460;  Crane  P.  Powell,  139  N.  Y.  379;  Hunt 
p.  Johnson  et  al.,  96  Ala.  130;    Benjamin  r.  Mattler  et  al.,  3  Col.  Ct.  of 
App.  227;  Donaldson  r.  Newman,  9  Mo.  App.  235;  Scharff  v.  Klein,  29 
Mo.  App.  549:    McClure  v.   Otrich,  118  111.  320;  Porter  v.  Wormser,  94 
N.  Y.  431;  Wells  o.  Monihan,  129  N.  Y.  161;  Reed  r.  McConnell,  62 
Hun  (N.  Y.)  153  ;    Douglass  v.  Snow,  77  Me.  91 ;  Howe  p.  Chesley,  56 
Vt.  727;  Battell  v.  Matot,  58  Vt.  271;  Scofield  P.  Stoddard.  58  Vt.  290; 
Ritch  P.  Thornton,  65  Ala.  309;  Clark  v.  Taylor,  68  Ala.  453;  Bailey  p. 
Irwin,  72  Ala.  505.     But  it  is  held  otherwise  in  North  Carolina.     Morri- 
son P.  Baker,  81  N.  C.  76;  Holler  v.  Richards,  102  N.  C.  54o;  Browning 
p.  Berry,  107  N.  C.  231.     And   see  Suman  v.   Springate,  67    Ind.  115; 
Gordon  p.  Reynolds,  114  111.  118. 

2  Hunter  v.  Randall,  62  Me.  423 ;  Boston  Duck  Co.  v.  Dewey,  6  Gray 
(Mass.)    446;  Durant  P.  Rogers,  71  111.  121.     See  Alger  P.  Johnson,  4 
Hun  (N.  Y.)  412;  Harris  p.  Frank,  81  Cal.  280 ;  Lynch  v.  Scroth,  50  HI. 
App.  Ct.  668. 


CH.   XX.]  PLEADING.  629 

allegations  admits  of  it,  by  demurrer.  The  appropriateness 
of  demurrer  has  been  already  indicated  in  previous  sections, 
where  the  proper  mode  of  averring  the  agreement  in  suit 
was  considered.  It  may  now  be  regarded  as  settled  in  this 
country,  both  at  law  and  in  equity,  that  a  demurrer  is  regu- 
lar where  the  bill  or  declaration  alleges  a  contract  within 
the  Statute  of  Frauds,  and  alleges  it  to  be  oral.1 

§  510.  Much  of  the  confusion  among  the  earlier  authorities 
upon  this  matter  of  allowing  the  defence  of  the  statute  to  be 
taken  by  demurrer,  would  seem  to  have  grown  out  of  the 
doctrine,  which  at  one  time  received  some  countenance,  that 
if  the  defendant  admitted  the  fact  of  the  agreement  as 
charged  (which  is  the  effect  of  a  demurrer  to  the  bill  or 
declaration),  the  agreement  must  be  enforced,  notwithstand- 
ing the  statute  was  insisted  upon  in  bar  of  the  relief.  This 
doctrine  no  longer  prevails;  the  defendant's  reliance  upon 
the  statute,  as  is  now  well  settled,  depriving  the  plaintiff  of 
the  benefit  of  the  admission.2  The  question  has  also  been 
further  complicated  by  the  failure  of  courts  to  distinguish 
between  cases  for  the  enforcement  of  contracts  on  common- 
law  grounds,  and  those  in  which  the  interference  of  equity 

1  Randall  v.  Howard,  2  Black  (U.  S.)  585;  Lawrence  v.  Chase,  54 
Me.  196.     And  see  Richards  v.  Richards,  9  Gray  (Mass.)  313;  Sanborn 
v.  Chamberlin,  101  Mass.  417;  Thomas  v.  Hammond,  47  Tex.  42.     Were 
the  question  to  be  considered  as  an  open  one,  quaere  whether,  at  common 
law,  and  upon  a  strict  application  of  the  principle  that  the  statute  has 
made  no  alteration  in  the  rules  of  pleading,  a   declaration  may  not  be 
good  which  alleges,  according  to  the  fact,  that  the  contract  was  oral,  say- 
ing nothing  as  to  whether  or  not  it  was  followed  by  any  of  those  authenti- 
cations of  the  oral  contract  for  which  the  statute  provides.     See  Kibby  v. 
Chitwood,  4  T.  B.  Mon.   (Ky.)  91 ;  Price  v.  Weaver,  13   Gray  (Mass.) 
272;   Boiling  v.  Munchus,  65   Ala.  558;  Phillips  v.  Adams,  70  Ala.  373; 
Manning  v.  Pippen,  86  Ala.  357;  Ducie  v.  Ford,  8  Montana,  233;  Camp- 
bell v.  Brown,  129  Mass.  23;  Cloud  v.  Greasley,  125  Til.  313;  White  v. 
Levy,  93  Ala.  484;  Ban-  v.  O'Donnell,  76  Cal.  469;  Roth  r.  Goerger,  118 
Mo.  556;  Burden  p.  Knight,  82  Iowa  584;  Speyer  r.  Dosjardins,  144  111. 
641 ;    Clanton  v.  Scruggs,  95  Ala.   279;  Piedmont  Land  &  Imp.  Co.  p. 
Piedmont  F.  &  M.  Co.,  96  Ala.  389;  Howard  ».  Brower,  37  Ohio  St  402; 
Beadle  v.  Seat,  15  So.  Rep.  (Ala.)  243. 

2  §  515,  post. 


630  STATUTE   OF  FRAUDS.  [CH.   XX. 

is  sought  upon  the  equitable  ground  of  fraud.  In  this  latter 
case,  as  has  already  been  pointed  out,  the  very  ground  of  the 
suit  is  afforded  by  the  power  of  a  court  of  equity  to  decline  to 
apply  the  provisions  of  the  statute  upon  proof  of  certain 
equitable  circumstances.  A  demurrer  to  such  a  bill  evi- 
dently raises  the  question  of  the  sufficiency  of  the  case 
shown,  the  application  and  force  of  the  statute  being  prac- 
tically recognized  by  the  very  nature  of  the  relief  sought.1 

§  510  a.  Where  the  bill  alleges  only  an  oral  agreement, 
and  the  answer  denies  it,  it  has  been  held  that  this  excludes 
oral  proof  of  the  agreement  in  issue.2 

§  511.  In  the  next  place,  a  defendant  may  insist  upon  the 
benefit  of  the  statute  by  plea  of  the  general  issue,  or  in 
equity  by  answer  simply,  denying  the  fact  of  the  agreement 
which  the  plaintiff  charges  to  have  been  made.  This  puts 
the  plaintiff  to  proof  of  the  agreement  at  the  trial  or  hearing, 
and  he  then  must  produce  a  writing.3  Where,  however,  the 

1  See  §  507,  supra. 

2  Mahana  v.  Blunt,  20  Iowa  142;  Askew  v.  Poyas,  2  Desaus.  (S.  C.) 
Ch.   145;  Allen  v.   Chambers,  4  Ired.  (N   C.)  Eq.   125;  Duuii  v.  Moore, 
3  Ired.  (N.  C.)  Eq.  364. 

8  Butternerew.  Hayes,  5  Mees.  &  W.  456;  Johnson  v.  Dodgson,  2  Mees. 
&  W.  653;  Elliott  ».  Thomas,  3  Mees.  &  W.  170;  Eastwood  v.  Kenyon, 
11  Ad.  &  E.  438;  Leaf  »>.  Tutou,  10  Mees.  &  W.  393;  Reade  v.  Lamb, 
6  Exch.  130;  and  in  equity,  Skinner  v.  McDouall,  2  De  G.  &  S.  265;  Clif- 
ford v.  Tnrrell,  1  Younge  &  C.  138;  Cozine  v.  Graham,  2  Paige  (N.  Y.) 
181;  Ontario  Bank  v.  Root,  3  Paige  (N.  Y.)  478;  Small  v.  Owings,  1  Md. 
Ch.  Dec.  363;  Chicago  &  Wilmington  Coal  Co.  v.  Liddell,  69  111.  639; 
Wynn  v.  Garland,  19  Ark.  23;  Trapnall  v.  Brown,  19  Ark.  39  ;  Myers  v. 
Morse,  15  Johns.  (N.  Y.)  425;  Givens  v.  Calder,  2  Desaus.  (S.  C.)  Ch. 
171;  Kay  r.  Curd,  6  B.  Mon.  (Ky.)  100:  Fowler  v.  Lewis,  3  A.  K.  Marsh. 
(Ky.)  443.  But  see  Maggs  v.  Ames,  4  Bing.  470;  Barnett  v.  Glossop,  1 
Bing.  N.  R.  633.  The  new  rules  of  pleading  under  the  Supreme  Court 
of  Judicature  Act,  make  it  necessary  to  plead  the  statute  specially.  See 
Rule  XIX.  par.  23,  sched.  1,  of  the  amended  Act.  And  see  Middlesex 
Co.  v.  Osgood,  4  Gray  (Mass  )  447,  and  Mass.  Gen.  St.  c.  129,  §  20 ;  May 
».  Sloan,  101  U.  S.  231;  Dunphy  v.  Ryan,  116  U.  S.  491 ;  Allen  v.  Richard, 
83  Mo.  55 ;  Wiswell  v.  Tefft,  5  Kans.  155 ;  Tatge  v.  Tatge,  34  Minn.  272  ; 
Busick  v.  Van  Ness,  44  N.  J.  Eq.  82 ;  May  v.  Sloan,  101  U.  S.  231 ;  Bern- 
hardt  r.  Walls,  29  Mo.  App.  206;  Feeney  v.  Howard,  79  Cal.  525  But 
see  Smith  v  Pritchett,  98  Ala.  649 ;  Citty  v.  Southern  Queen  Mfg.  Co., 
24  S.  W.  Rep.  (Tenn.)  121. 


CH.    XX.]  PLEADING.  631 

bill,  in  addition  to  the  allegation  in  general  terms  that  the 
agreement  was  made,  alleges  such  acts  done  in  part  execu- 
tion of  it,  or  such  other  equitable  circumstances,  as  would 
justify  the  court  in  enforcing  it,  the  defendant  cannot  by 
this  method  avail  himself  of  his  defence  upon  the  statute, 
but  must  directly  traverse  the  allegation  of  equitable  cir- 
cumstances, at  the  same  time  that  he  pleads,  or  by  answer 
insists  upon,  the  statute  as  preventing  the  plaintiff's  recovery 
on  the  mere  verbal  agreement.1  And  this  brings  us  to  the 
most  important  class  of  cases  upon  the  subject  of  the  present 
chapter. 

§  512.  A  defendant  may,  by  special  plea  or  by  answer, 
expressly  interpose  the  statute  in  bar  of  the  plaintiff's  claim. 
Under  this  head,  several  questions  arise:  first,  when  the 
statute  may  be  specially  pleaded  or  insisted  upon ;  secondly, 
the  proper  form  of  the  plea  or  answer  in  order  to  present  the 
defence  upon  the  statute ;  thirdly,  the  extent  of  the  defence 
thus  presented. 

§  513.  We  have  already  seen  that  it  is  open  to  the  defend- 
ant to  demur  where  the  plaintiff  expressly  states  that  the 
agreement  rests  in  parol.  Where  he  does  not  by  his  allega- 
tions disclose  whether  it  is  in  writing  or  not,  the  defendant 
may  deny  that  it  is  in  writing  and  insist  upon  the  statute  by 
his  plea  or  answer. 

§  514.  And  in  equity,  although,  as  the  general  averment 
of  an  agreement  in  the  bill  may  be  understood  to  mean  an 
agreement  in  writing,  the  plea  of  the  statute  has  rather  the 
appearance  of  an  answer,  it  has  always  been  allowed  in  that 
form.  But  if  the  bill  states  an  agreement  in  writing  and 
seeks  nothing  but  an  execution  of  that  agreement,  a  plea 
that  there  is  no  agreement  in  writing  has  been  considered 
improper,  being  no  more  than  so  much  of  an  answer.2 

§  515.  It  was  formerly  held  that  if  the  defendant,  by  his 

i  Pout,  §  518. 

3  Per  Lord  Eldon,  in  Morison  v.  Tumour,  18  Ves.  175.  And  see 
Story,  Eq.  PL  §  762,  note. 


632  STATUTE   OF  FRAUDS.  [CH.   XX. 

answer  in  chancery,  admitted  the  fact  of  the  agreement,  he 
could  not  avail  himself  of  the  benefit  of  the  statute.  Lord 
Macclesfield  so  decided,1  and  Lord  Hardwicke,  if  he  did  not 
actually  determine  the  point,2  clearly  appears  to  have  been 
of  the  same  opinion.3  But  by  the  unbroken  course  of  more 
modern  decisions,  it  is  now  settled  that  although  the  defend- 
ant admit  the  agreement,  it  cannot  be  enforced  without  the 
production  of  a  written  memorandum,  if  he  insist  upon  the 
bar  of  the  statute.4  As  was  said  by  Sir  William  Grant,  "It 
is  immaterial,  what  admissions  are  made  by  a  defendant 
insisting  upon  the  benefit  of  the  statute;  for  he  throws  it 
upon  the  plaintiff  to  show  a  complete  written  agreement; 
and  it  can  no  more  be  thrown  upon  the  defendant  to  supply 
defects  in  the  agreement  than  to  supply  the  want  of  an  agree- 
ment."  5  The  American  courts  have  also  fully  accepted  this 
doctrine.6  It  is  hardly  necessary  to  say  that  the  defendant 

1  Child  v.  Godolphin,  1  Dick.  39 ;  8.  c.  cited  2  Bro.  C.  C.  566 ;  Child 
v.  Comber,  3  Swanst.  423,  note. 

2  Cottington  v.   Fletcher,  2  Atk.    155.     It  is  to  this  case   that  Lord 
Loughborough  seems  to  refer  when  he  says  (Moore  v.  Edwards,  4  Ves. 
24):  "  There  is  a  case  in  Atkyns  that  misleads  people;  where  Lord  Hard- 
wicke is  stated  to  have  overruled  the  defence  upon  the  statute  merely  on 
the  ground  that  the  agreement  was  admitted.     I  had  occasion  to  look  into 
that;  and  it  is  completely  a  misstatement.     It  appears  by  Lord  Hard- 
wicke's  own  notes  that  it  was  upon  the  agreement  having  been  in  fact 
executed  that  he  determined  that  case." 

8  See  his  dictum  in  Lacon  v.  Mertins,  3  Atk.  3. 

4  Walters  v.  Morgan,  2  Cox  369 ;  Whitbread  v.  Brockhurst,  1  Bro. 
C.  C.  416;  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  559.  and  Eyre  v.  Ivison,  and 
Stewart  v.  Careless,  there  cited;  Rondeau  v.  Wyatt,  2  H.  Bl.  63;  Moore 
v.  Edwards,  4  Ves.  23 ;  Cooth  v.  Jackson,  6  Ves.  37 ;  Rowe  P.  Teed,  15 
Ves.  375  ;  Blagden  v.  Bradbear,  12  Ves.  466;  Kine  v.  Balfe,  2  Ball  &  B. 
343;  Luckett  v.  Williamson,  37  Mo.  388;  Bart  P.  Wilson,  28  Cal.  632; 
Taylor  v.  Allen,  40  Minn.  433.  But  see  Auter  v.  Miller,  18  Iowa,  405; 
Dewey  v.  Life,  60  Iowa  361;  Creigh's  Administrator  v.  Boggs,  19 
W,  Va.  240. 

6  Blagden  v.  Bradbear,  12  Ves.  471. 

6  Thompson  v.  Tod,  Pet.  (C.  C.)  380;  Stearns  v.  Hubbard,  8  Greenl. 
(Me.)  320:  Argenbright  v.  Campbell,  3  Hen.  &  M.  (Va.)  144;  Winn  v. 
Albert,  2  Md.  Ch.  Dec.  169;  s.  c.  nom.  Albert  v.  Winn,  5  Md.  06;  IIol- 
lingshead  v.  McKenzie,  8  Ga.  457;  Barnes  v.  Teague,  1  Jones  (N.  C.)Eq. 
277  ;  Thompson  v.  Jamesson,  1  Cranch  (C.  C.)  295. 


CH.    XX.]  PLEADING.  633 

is  not  debarred  from  thus  insisting  upon  the  statute,  by  the 
bill's  alleging  that  the  agreement  has  been  in  part  per- 
formed; for  the  part-performance  can  have  no  other  effect 
than  to  let  in  the  plaintiff  to  prove  the  contract  aliunde 
where  it  is  not  confessed.1 

§  516.  According  to  a  case  before  Lord  Thurlow,  it  would 
seem  to  have  been  considered  by  him  that  where  a  bill  in 
equity  charges  acts  of  part-performance  or  other  equitable 
circumstances  to  avoid  the  bar  of  the  statute,  it  is  impossible 
for  the  defendant  to  plead  the  statute  in  bar ;  for  in  that  case 
the  plea  averring,  first,  that  there  was  no  contract  in  writ- 
ing, and  secondly,  that  there  had  been  no  acts  done  in  part- 
performaiice,  was  overruled  as  double.2  The  bill,  in  fact, 
seems  to  have  asserted  two  grounds  of  relief,  a  written  agree- 
ment and  acts  done  in  part-performance,  thus  making  a 
double  case,  both  branches  of  which  the  defendant  sought  to 
meet  in  his  plea.  It  is  remarked,  however,  by  an  eminent 
writer,  that  it  may  be  questionable  whether,  at  this  advanced 
era  of  equity  pleading,  such  an  objection  should  be  suffered 
to  prevail,  as  this  mode  of  pleading,  though  undoubtedly 
loose  and  improper,  technically  speaking,  had  been,  for  a 
period  long  preceding,  acknowledged  and  tolerated.8 

§  516  a.  Whether  the  rule  that  a  defendant  may  insist 
upon  the  statute,  though  admitting  the  agreement  charged, 

1  Thompson  v.  Tod,  Pet.  (C.  C.)  380. 

8  Whitbread  v.  Brockhurst,  1  Bro.  (C.  C.)  404. 

*  Beames's  Elements  of  Pleas  in  Equity,  174.  Such  also  would  seem 
to  be  the  inclination  of  Lord  Redesdale's  mind,  from  a  comparison  of  the 
several  passages  of  his  work  on  Pleading  (Mitf.  PI.  240,  243,  266,  267), 
bearing  upon  this  question.  In  his  second  edition  he  states  the  settled 
rule  to  be  that  "  if  any  matter  is  charged  in  the  bill,  which  may  avoid  the 
bar  created  by  the  statute,  that  matter  must  be  denied  by  way  of  aver- 
ment in  the  plea,  and  must  be  denied  particularly  and  precisely  by  way 
of  answer  to  support  the  plea."  (pp.  212-214.)  In  his  last  edition,  he 
states  this  as  what  had  been  the  rule,  deferring,  apparently  with  some  re- 
luctance, to  Lord  Thurlow's  decision  in  Whitbread  v.  Brockhurst.  See 
ante,  §  507,  as  to  this  difficulty  in  regard  to  the  manner  of  pleading  hay- 
ing grown  out  of  the  disuse  of  special  replications. 


634  STATUTE   OF  FRAUDS.  [CH.   XX. 

applies  equally  in  cases  of  trusts,  is  a  question  which  has 
been  agitated  to  some  extent,  and  is  of  manifest  importance. 
Lord  Redesdale  speaks  of  it  as  a  question  "  upon  which  it 
may  be  very  difficult  to  make  a  satisfactory  distinction."1 
The  admission  of  the  trust  by  the  defendant's  answer  is  sus- 
ceptible, it  is  said,  of  being  considered  as  a  declaration  of 
trust  in  writing.2  But  at  the  same  time  it  is  admitted  that, 
to  the  same  extent,  an  admission  of  an  agreement  must, 
upon  the  same  principle,  be  considered  as  a  memorandum  of 
the  agreement,  and  that  it  is  difficult  to  see  why  the  defend- 
ant should  not  be  allowed  to  insist  upon  the  statute,  notwith- 
standing such  admission,  in  one  case  as  well  as  in  the 
other.3  Indeed,  it  may  well  be  said,  that  whether  the 
admission  in  either  case  is  or  is  not  properly  to  be  taken  as 
a  manifestation  of  the  trust  or  a  memorandum  of  the  agree- 
ment, within  the  meaning  of  the  statute,  must  depend  upon 
the  question  whether  the  defendant  is  allowed  nevertheless 
to  insist  upon  the  statute.  If  he  is,  it  can  hardly  be  that 
his  admission  amounts  to  the  required  manifestation  or 
memorandum,  seeing  that  it  is  in  his  power  to  nullify  the 
whole  effect  of  it  in  the  same  pleading.4 

§  517.  We  have  seen,  at  an  earlier  page,  that  a  man  might 
be  convicted  of  perjury  for  falsely  swearing  to  a  contract 
within  the  Statute  of  Frauds,  on  the  ground  that  the  testi- 
mony was  not  immaterial  when  in  fact  it  proved  the  promise ; 
though  it  might  have  been  incompetent,  if  objected  to  in 
season.5  It  has  been  held,  however,  by  Chief  Justice  Abbott, 
at  nisi  prius,  that  where,  in  an  answer  in  chancery  to  a  bill 
filed  against  the  defendant  for  a  specific  performance  of  an 
agreement  relating  to  the  purchase  of  land,  the  defendants 
denied  having  entered  into  any  such  agreement,  and  relied 


1  Mitf.  Eq.  PI.  268.     See  Rigby  v.  Norwood,  34  Ala.  129. 

2  Mitf.  Eq.  PI.  268.     Also  Story  Eq.  PI.  §  766. 

•  Mitf.  Eq.  PL  268;  Story  Eq.  PL  §  766. 

*  Ante,  §  498. 

6  Ante,  §  135  b. 


CH.   XX.]  PLEADING.  635 

upon  the  Statute  of  Frauds,  they  were  not  guilty  of  perjury 
upon  its  being  proved  that  they  had  entered  into  such  an 
agreement  verbally.  The  Chief  Justice  said :  "  The  statute, 
for  the  wisest  reasons,  declares  that  agreements  of  this 
description  shall  not  be  enforced  unless  they  are  reduced 
into  writing.  These  defendants,  therefore,  having  insisted 
upon  the  statute  in  their  answer,  the  question  is  whether, 
under  such  circumstances,  the  denial  of  an  agreement  which 
by  the  statute  is  not  binding  upon  the  parties  is  material ;  I 
am  of  opinion  that  it  was  utterly  immaterial.  It  is  neces- 
sary that  the  matter  sworn  to,  and  said  to  be  false,  should 
be  material  and  relevant  to  the  matter  in  issue,  the  matter 
here  sworn  to  is  in  my  judgment  immaterial  and  irrelevant, 
and  the  defendant  must  be  acquitted."  l  In  this  case,  it  will 
be  observed,  the  testimony  given  by  the  defendants  did  not 
prove  the  contract,  all  parol  proof  of  it  having  been  barred 
by  their  reliance  upon  the  statute ;  whereas  in  the  case  before 
referred  to,  that  bar  not  having  been  interposed,  the  testi- 
mony was  competent  and  material,  and  did  prove  the  con- 
tract. Lord  Mansfield  relates  a  case,  which  he  speaks  of 
as  remarkable,  where  the  defendant  bought  an  estate  for  the 
plaintiff;  there  was  no  writing,  nor  was  any  part  of  the 
money  paid  by  the  plaintiff;  the  defendant  articled  in  his 
own  name  and  refused  to  convey,  and  by  his  answer  denied 
any  trust ;  parol  evidence  was  rejected,  and  the  bill  was  dis- 
missed ;  the  defendant  was  afterward  indicted  for  perjury, 
tried,  and  convicted  upon  evidence  of  the  plaintiff  confirmed 
by  circumstances  and  the  defendant's  declarations ;  the  plain- 
tiff then  petitioned  for  a  supplemental  bill  in  the  nature  of  a 
bill  of  review,  stating  this  conviction,  but  the  bill  was  dis- 
missed because  the  conviction  was  not  evidence.2  It  would 
appear  from  his  Lordship's  account  of  the  case,  that  the 
Statute  of  Frauds  was  insisted  upon  by  the  defendant,  as 

1  Rex  v.  Dunston,  Ry.  &  M.  112. 

2  Bartlett  v.  Fickeregill,  Trin.  T.  32  &  33  Geo.  II.,  cited  in  Abrahams 
v,  Bunn,  4  Burr.  2255,  and  4  East  577,  in  nolis. 


636  STATUTE   OF  FRAUDS.  [CH.   XX. 

upon  no  other  ground  could  parol  evidence  of  the  contract 
have  been  rejected.  If  so,  it  conflicts  with  the  decision  of 
Chief  Justice  Abbott,  and  is  overruled  by  it  so  far  as  the 
propriety  of  the  conviction  for  perjury  is  concerned ;  but  it 
seems  that  it  may  stand  upon  the  general  rule  that  when  the 
defendant  does  not  choose  to  admit  the  agreement  and  there- 
by waive  the  benefit  of  the  statute,  the  truth  of  his  denial 
cannot  be  inquired  into  by  means  of  parol  evidence. 

§  518.  The  next  question  is  upon  the  form  or  ingredients 
of  a  proper  plea  or  answer  insisting  upon  the  statute.1  In 
equity,  the  defendant's  plea  of  the  statute  must  contain  nega- 
tive averments  to  the  effect  that  there  was  no  writing  exe- 
cuted as  required  by  the  statute.2  And  when  the  bill  charges 
any  such  equitable  circumstances  as  might  avoid  the  bar  of 
the  statute,  they  must  be  traversed  generally  by  way  of  aver- 
ment in  the  plea,  and  particularly  and  precisely  by  way  of 
answer  to  support  the  plea.3  So  also,  where  the  bill,  though 
not  stating  any  such  equitable  circumstances,  alleges  the 
agreement  to  have  been  in  writing,  and  charges  facts  in  evi- 
dence thereof,  negative  averments  must  be  put  in  by  the 


1  For  form  of  plea  of  the  statute  to  bill  for  specific  performance  of 
a  parol  agreement,  accompanied  by  an  answer  to  the  matters  stated  in  the 
bill  tending  to  show  part-performance,  see  Whitchurch  v.  Bevis,  2  Bro. 
C.  C.  559;  Van  Heythusen's  Eq.  Draft.  107.     For  form  of  answer  insist- 
ing on  the  same  benefit  of  the  statute  as  if  it  had  been  pleaded,  see  Curtis, 
Eq.  Free.  197,  198. 

2  Mitf.  Eq.  PI.  265;  Welf.  Eq.  PI.  326;  Stewart  v.  Careless,  cited  in 
Whitchurch  v.  Bevis,  2  Bro.  C.  C.  565 ;  Moore  v.  Edwards,  4  Ves.  23 ; 
Bowers  ?>.  Cator,  4  Ves.  91 ;  Evans  v.  Harris,  2  Ves.  &  B.  361 ;  Mussellu. 
Cooke,  Finch,  Free.  Ch.  533 ;  Bean  v.  Valle,  2  Mo.  126 ;  Dinkel  v.  Gun- 
delfinger,  35  Mo.  172. 

8  Taylor  v.  Beech,  1  Ves.  Sr.  297;  Bowers  v.  Cator,  4  Ves.  91 ;  Rowe 
v  Teed.  15  Ves.  378;  Evans  v.  Harris,  2  Ves.  &  B.  361 ;  Cooth  v.  Jack- 
son, 6  Ves.  12  ;  Hall  v.  Hall,  1  Gill  (Md.)  383  ;  Cozine  v.  Graham,  2  Paige 
(N.  Y.)  Ch.  177 ;  Champlin  v.  Parish,  11  Paige  (N.  Y.)  Ch.  405;  Harris 
v.  Knickerbacker,  5  Wend.  (N.  Y.)  638;  Thompson  v.  Tod,  Pet.  (C.  C.) 
380;  Chambers  v.  Massey,  7  Ired.  (N.  C.)  Eq.  286;  Meach  v.  Stone,  1  D. 
Chip.  (Vt.)  182;  Miller  v.  Gotten,  5  Ga.  341  ;  Tarleton  v.  Vietes,  1  Gilm. 
(111.)  470.  But  see  ante,  §  516. 


CE,   XX.]  PLEADING.  637 

defendant  against  these  allegations.1  At  law,  the  earlier 
cases  leave  it  doubtful  whether  the  correct  practice  was  to 
couple  the  plea  of  the  statute  with  a  denial  that  the  contract 
sued  upon  was  reduced  to  writing  according  to  its  require- 
ments. In  Lilley  v.  Hewitt,  decided  in  the  Exchequer  in 
1822,  the  action  was  upon  a  guaranty,  and  the  plea  averring 
that  there  was  no  agreement  or  note  or  memorandum  stating 
the  consideration,  in  writing  signed  by  the  defendant,  was 
held  bad  on  special  demurrer.  Mr.  Baron  Wood,  with  whom 
the  rest  of  the  court  seem  to  have  concurred,  said  the  plea 
appeared  to  him  to  be  altogether  new,  that  he  had  never 
before  met  with,  nor  did  he  ever  hear  of,  such  pleas  as  a  bar 
to  an  action  of  that  nature,  and  he  condemned  them  in  the 
strongest  language,  as  leading  to  great  prolixity  and  con- 
fusion in  pleading.2  But  in  Maggs  v.  Ames,  a  few  years 
later,  the  Court  of  Common  Pleas  held  a  similar  plea  to  be 
good ;  without  any  allusion  made  to  Lilley  v.  Hewitt  by  the 
court  or  in  argument.3  Again,  Lord  Tenterden,  in  the  House 
of  Lords,  where  a  similar  plea  was  presented,  said  he  in- 
clined to  think  it  bad ;  but  he  did  not  find  it  necessary  to 
pass  upon  the  point.4  In  1833  the  New  Rules  were  passed, 
by  which,  among  other  things,  it  is  ordered  that  the  general 
issue  shall  operate  only  as  a  denial  in  fact  of  the  express 
contract  or  promise  alleged,  or  of  the  matters  of  fact  from 
which  the  contract  or  promise  alleged  is  implied  by  law.6 
It  was  soon  settled  that  under  the  general  issue,  as  thus 
restricted,  the  defence  of  want  of  written  memorandum  might 
still  be  taken,6  and  thereby  the  case  ,of  Maggs  v.  Ames  is 

1  Evans  v.  Harris,  2  Ves.  &  B.  861.     And  see  Jones  v.  Davis,  16  Ves. 
262. 

2  Lilley  v.  Hewitt,  11  Price  494. 

8  Ma.GT.es  r.  Ames,  4  Bing.  470.  The  form  there  sustained  is  inserted 
by  Mr.  Chitty  in  his  volume  of  precedents,  2  Chit.  PI.  909. 

4  Lysapht  v.  Walker,  5  Bligh  N.  8.  1. 

6  Hil.  T.  4  Will.  IV. 

8  Johnson  v.  Dodppon,  2  Mees.  &  W.  653 ;  Buttemere  v.  Hayes,  5  Mees. 
&  W.  456;  Eastwood  v.  Kenyon,  11  Ad.  &  E.  438. 


638  STATUTE   OF  FRAUDS.  [CH.   XX. 

considered  to  be  overruled.  Later  cases  established  that  a 
plea  that  the  alleged  agreement  was  not  reduced  to  writing, 
etc.,  is  bad  on  demurrer,  as  amounting  to  an  argumentative 
denial  of  the  contract  or  of  the  facts  from  which  it  is  implied 
by  law,  within  the  New  Rules.1 

§  519.  The  language  of  the  plea  or  answer  in  setting  up 
the  statute  must  be  clear  and  explicit  to  that  end.  Where  a 
defendant  by  his  answer  formally  alleged  that  no  formal  note 
of  the  agreement  charged  was  made,  and  denied  that  any 
binding  agreement  ever  existed,  but  did  not  expressly  claim 
the  benefit  of  the  Statute  of  Frauds,  he  was  held  to  be  not 
entitled  to  the  benefit  of  it  at  the  hearing.2  So  with  an  alle- 
gation in  the  answer,  "  that  the  contract  is  void  in  law  and 
that  the  defendant  is  not  bound  to  perform  the  same. " 3 
And  where  the  answer  to  a  bill  for  the  specific  performance 
of  a  contract  for  the  sale  of  land  set  up  that  the  writing  pro- 
duced was  signed  by  the  defendant  for  another  purpose  and 
not  to  acknowledge  the  agreement,  and  concluded  with  sub- 
mitting to  the  court  whether  it  was  "an  agreement,  such  as 
is  required  by  law  and  equity,  to  compel  the  defendant  to  make 
the  sale  and  conveyance  claimed,"  etc.,  the  Supreme  Court 
of  the  United  States  doubted  whether  it  was  a  sufficient  set- 
ting up  of  the  statute,  though  they  did  not  find  it  necessary 
to  determine  the  point.4 

§  520.  Next,  as  to  the  extent  of  the  protection  afforded 
the  defendant  by  his  plea  or  answer  setting  up  the  statute. 
This  presents  the  inquiry,  whether  he  is  thereby  protected 

1  Leaf  v.  Tuton,  10  Mees.  &  W.  393  ;  Reade  ».  Lamb,  6  Exch.  130. 
But  see  §  511  supra,  showing  a  still  more  recent  change  in  the  Rules. 

2  Skinner  v.  McDouall,  2  De.  G  &  S.  265 ;  Rigby  ».  Norwood,  34  Ala. 
129. 

8  Vaupell  v.  Woodward,  2  Sandf.  (N.  Y.)  Ch.  143.  See  also  Rhodes 
v.  Rhodes,  3  Sandf.  (N.  Y.)  Ch.  279. 

4  Barry  v.  Coombe,  1  Pet.  649.  See  further  on  this  subject,  Small  v. 
Owings,  1  Md.  Ch.  Dec.  363;  Harrison  v.  Harrison,  1  Md.  Ch.  Dec.  331  ; 
Edelin  v.  Clarkson,  3  B.  Mon.  (Ky.)  31;  Allen  v.  Chambers,  4  Ired. 
(N.  C.)  Eq.  125;  Baker  v.  Hollobaugh,  15  Ark.  322;  Schoonmaker  v. 
Plummer,  139  111.  612. 


CH.   XX.]  PLEADING.  639 

from  discovery  as  to  the  fact  of  the  making  of  the  agreement; 
and  it  is  a  question  the  most  difficult  in  itself,  and  the  most 
embarrassed  by  conflicting  decisions  and  dicta,  of  any  which 
have  thus  far  arisen  upon  the  subject  of  pleading  under  the 
Statute  of  Frauds. 

§  521.  The  doctrine  that  the  defendant  cannot  plead  the 
statute  in  bar  of  the  discovery,  is  principally  founded  upon 
the  rule  of  equity,  that  every  defendant  is  bound  to  confess 
or  deny  all  facts  which,  if  confessed,  would  give  the  plain- 
tiff a  claim  or  title  to  the  relief  prayed,  and  that,  as  equity 
would  decree  a  parol  agreement  if  confessed,  the  defendant 
must  confess  or  deny  it.  "  But  in  applying  this  rule, "  says 
an  eminent  writer,  with  a  force  and  discrimination  displayed 
by  none  other  upon  this  vexed  question,  "it  is  previously 
material  to  ascertain,  whether  the  Statute  of  Frauds  has  not 
in  such  a  case  relieved  the  defendant  from  this  general 
obligation.  The  prevention  of  frauds  and  perjuries  is  the 
declared  object  of  the  statute ;  and  the  decreeing  of  a  parol 
agreement,  when  confessed  by  the  defendant,  and  the  statute 
not  insisted  on,  is  evidently  consistent  with  such  object; 
nam  quisque  renuntiare  pote&t  juri  pro  se  introducto.  But  if 
the  defendant  be  bound  to  confess  or  deny  the  parol  agree- 
ment, his  answer  must  be  either  liable  to  contradiction,  or 
not  liable  to  contradiction.  If  the  defendant's  answer  be 
liable  to  contradiction  by  evidence  aliunde,  the  evil  arising 
from  contradictory  evidence,  which  the  statute  proposed  to 
guard  against,  would  necessarily  result.  If  the  defendant's 
answer  be  not  liable  to  contradiction  by  evidence  aliunde, 
the  rule  would  furnish  a  temptation  to  perjury,  by  giving  the 
defendant  a  certain  interest  in  denying  the  agreement; 
since,  if  he  confessed  it,  he  would  be  bound  to  perform  it. 
If  the  defendant  be  bound  to  confess  or  deny  the  parol  agree- 
ment insisted  on  by  the  plaintiff,  one  of  the  above  conse- 
quences must  necessarily  ensue ;  which  of  the  two  is  likely 
to  prove  the  most  mischievous,  were,  perhaps,  difficult  to 
decide;  for  though  the  perjury,  which  might  take  place  if 


640  STATUTE   OF  FKAUDS.  [CH.   XX. 

contradictory  evidence  were  allowed,  is  an  evil  of  consider- 
able size,  yet  the  defendant  being  liable  to  be  contradicted, 
might  operate  as  a  check  on  his  falsely  denying  that  which 
was  truly  alleged."1 

§  522.  And  so  Lord  Thurlow,  upon  one  of  several  occa- 
sions on  which  a  case  presenting  this  question  was  argued 
before  him,  remarked  that  the  court  had  laid  down  two 
exceptions,  by  which,  if  they  were  to  be  sustained,  it 
amounted  to  the  same  thing  as  if  the  statute  had  made  the 
exception  of  the  two  cases,  that  is,  where  the  agreement  is 
confessed  by  the  answer,  or  where  there  is  a  part -perform- 
ance ;  that  in  the  latter  case  the  defendant  must  answer  to 
the  agreement  as  well  as  to  the  part -performance;  that  as  to 
the  former,  it  was  a  clear  exception  from  the  statute,  that 
the  danger  of  fraud  and  perjury  was  avoided,  where  the 
defendant  admitted  the  agreement ;  that  if  the  party  might 
or  might  not  take  advantage  of  the  statute  by  insisting  or 
not  insisting  upon  it,  there  was  no  foundation  for  the  excep- 
tion, but,  if  the  exception  was  founded,  it  made  it  like  any 
other  equitable  case.  "But, "he  asks,  "what  will  become 
of  the  statute  ?  The  bill  will  not  be  sustained,  unless  the 
defendant  confesses  the  agreement  by  his  answer ;  you  shall 
not  prove  it  aliunde. "  2  Nevertheless,  he  comes  to  the  con- 
clusion that  even  if  the  bill  stated  only  the  agreement,  with- 
out alleging  part-performance,  a  pure  plea  of  the  statute  would 
not  suffice,  but  the  defendant  must  answer  to  the  agreement. 

§  523.  Again,  it  is  obvious,  upon  a  careful  examination 
of  the  cases,  that  the  doctrine  that  the  defendant  could  not 
plead  the  statute  in  bar  of  the  discovery  as  to  the  fact  of  the 
agreement,  is  closely  connected  with  the  doctrine,  which,,  as 
we  have  seen,  is  no  longer  maintained,  that  upon  a  confes- 


1  Fonbl.  Eq.  Ftk.  T.  Ch.  III.  §  8,  note  d. 

2  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  567.     Such  seems  to  be  the  con- 
clusion of  his  Lordship,  and  is  the  only  one  which  makes  the  report  of 
the  case  (which  is  quite  defective  and  confused)  consistent  with  itself. 
See  Mr.  Belt's  note  to  page  557  of  the  report. 


CH.   XX.]  PLEADING.  641 

sion  of  the  agreement  by  answer  the  court  will  enforce  it, 
although  the  defendant  insist  upon  the  benefit  of  the  statute. 
Thus,  Lord  Thurlow  says,  in  the  case  just  referred  to: 
"When  a  court  of  equity  said,  that,  if  a  parol  agreement 
came  out,  there  should  be  a  specific  performance,  they  said 
it  was  matter  of  honesty  to  carry  it  into  execution.  If  I  say 
that,  upon  a  parol  agreement  appearing  it  shall  be  performed, 
I  must  say,  I  shall  compel  the  discovery  whether  there  was 
a  parol  agreement  or  not, "  for,  as  he  adds  in  another  place, 
"the  discovery  is  only  an  incident  to  the  natural  justice  of 
performing  the  unwritten  agreement."  1  And  so  Lord  Mac- 
clesfield  said  in  an  early  case :  "  The  defendant  ought  by 
answer  to  deny  the  agreement;  for  if  she  confessed  the  agree- 
ment, the  court  would  decree  a  performance  notwithstanding 
the  statute,  for  that  such  confession  would  not  be  looked 
upon  as  perjury,  or  intended  to  be  prevented  by  the  stat- 
ute. "  2  It  is  thus  apparent  that  the  doctrine  of  not  allowing 
the  statute  to  be  pleaded  in  bar  of  the  discovery,  has  been, 
by  the  course  of  later  and  sounder  decisions,  deprived  of  its 
chief  foundation  in  principle ;  if,  indeed,  it  has  not  become 
entirely  nugatory. 

§  524.  Before  examining  the  cases  bearing  upon  this  ques- 
tion, however,  one  more  quotation  may  be  pardoned,  in  order 
that  the  objections  in  reason  to  compelling  a  discovery  may 
be  fully  illustrated.  In  a  case  in  the  highest  court  of 
judicature  in  Virginia,  Mr.  Justice  Tucker  says :  "  I  am, 
therefore,  of  opinion,  that,  with  respect  to  all  promises, 
agreements,  and  contracts  within  the  purview  of  the  statute, 
if  not  reduced  to  writing,  and  signed  pursuant  to  the  statute, 
and  if  nothing  be  done  in  performance  of  them,  whereby  the 
actual  state  of  the  parties,  or  one  of  them,  is  materially 
affected ;  they  ought  to  be  considered  as  imperfect  and  incom- 
plete, so  as  to  be  incapable  of  supporting  a  suit,  either  at 
law,  or  in  equity;  consequently,  that  wherever  a  defendant 

1  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  560. 
3  Child  v.  Godolphin,  1  Dick.  42. 
41 


642  STATUTE   OF   FRAUDS.  [CH.   XX. 

to  a  bill  for  the  specific  performance  of  a  parol  agreement, 
pleads  and  relies  upon  the  benefit  of  the  statute,  he  is  not 
compellable  to  answer  as  to  the  agreement,  and  confess  or 
deny  it,  but  may  protect  himself  from  such  answer  by  his 
plea;  and  where  offered  and  insisted  on,  it  ought  to  be 
allowed:  for,  by  compelling  a  defendant  to  answer  after  he 
has  claimed  the  protection  of  the  statute  by  his  plea,  the 
inducement  to  perjury,  which  it  is  the  object  of  the  statute 
to  prevent,  will  be  increased  in  tenfold  proportion. " 1 

§  525.  The  first  case  in  which  this  question  appears  to 
have  been  raised  was  that  of  Child  v.  Godolphin,  decided  by 
Lord  Macclesfield,  in  1723,  where  it  was  held  that  the 
defendant  ought  by  answer  to  deny  the  agreement,  and  a  plea 
of  the  statute,  not  denying  the  parol  agreement,  was  ordered 
to  stand  for  an  answer.2 

§  526.  In  Cottington  v.  Fletcher,  1740,  the  same  question 
arose  upon  a  trust,  upon  which  the  plaintiff  alleged  that  the 
defendant  had  taken  a  certain  advowson,  and  the  defendant 
pleaded  the  Statute  of  Frauds  in  bar  of  the  discovery,  but  by 
his  answer  admitted  that  the  advowson  was  assigned  to  him 
for  the  purposes  charged  by  the  bill.  Lord  Hardwicke  said 
that  undoubtedly,  if  the  plea  stood  by  itself  it  might  have 
been  a  sufficient  plea;  but  as  coupled  with  an  answer  admit- 
ting the  facts,  it  was  overruled.3 

§  527.  Again,  in  Taylor  v.  Beech,  1749,  a  case  of  agree- 
ment for  securing  a  wife's  independent  property  at  her 
marriage,  the  defendant  denied  having  entered  into  any 
written  agreement,  and  pleaded  the  statute  in  bar  of  any  dis- 
covery as  to  the  parol  agreement.  Lord  Hardwicke  over- 
ruled the  plea  because  of  the  equitable  circumstances  alleged, 
although,  as  he  said,  "  the  Statute  of  Frauds  was  a  protection 

1  Arganbright  t».  Campbell,  3  Hen.  &  M.  161. 

2  Child  v.  Godolphin,  1  Dick.  39.    But  see  the  case  of  Hollis  v.  White- 
ing,   1  Vern.  151,  where  Lord  Keeper  North  said,  as  early  as  1682,  that 
if  a  plaintiff  laid  in  his  bill  that  it  was  part  of  the  agreement  that  it 
should  be  put  in  writing,  it  would  possibly  require  an  answer. 

*  Cottington  v,  Fletcher,  2  Atk.  155. 


CH.    XX.]  PLEADING.  643 

against  the  defendant's  making  a  discovery  of  a  parol 
agreement,  and  might  be  pleaded  as  well  to  the  discovery  as 
relief."1 

§  528.  The  same  question  was  argued  very  fully  before  the 
House  of  Lords,  in  the  case  of  Whaley  v.  Bagnel,  in  1765. 
The  plaintiff's  bill  was  for  a  specific  execution  of  an  oral 
agreement  for  the  sale  of  land,  and  the  defendant  pleaded 
the  Statute  of  Frauds  in  bar  both  of  the  discovery  and  relief. 
The  plea  having  been  allowed  by  the  Lord  Chancellor  of  Ire- 
land, an  appeal  was  taken  to  the  House  of  Lords,  and  was 
there  dismissed.2 

§  529.  The  case  of  Whitchurch  v.  Bevis,  before  Lord 
Thurlow,  was  first  heard  in  1786,  and,  after  several  rehear- 
ings  and  full  arguments,  was  finally  determined  three  years 
later.  The  bill  was  for  a  specific  performance  of  an  agree- 
ment to  sell  a  house  for  an  annuity,  and  stated  certain  facts 
in  the  way  of  part-performance,  the  agreement  not  having 
been  reduced  to  writing ;  the  defendant  pleaded  the  Statute 
of  Frauds,  both  as  to  the  discovery  and  relief,  but  did  not 
aver  in  his  plea  that  there  was  no  parol  agreement.  Lord 
Thurlow,  after  the  first  hearing  upon  the  plea,  ordered  the 
cause  to  stand  over  that  it  might  be  argued  upon  the  form  of 
the  plea  itself,  remarking  that  if  the  rule  was  right  that, 
upon  an  agreement  appearing  by  the  answer,  though  not  in 
writing,  it  should  be  enforced,  notwithstanding  the  defend- 
ant insisted  upon  the  statute,  he  saw  no  reason  why  there 
should  not  be  a  discovery,  for  the  discovery  was  only  an 
incident  to  the  natural  justice  of  performing  the  unwritten 
agreement.  At  a  subsequent  hearing,  his  Lordship  overruled 
the  plea,  and  ordered  it  to  stand  for  an  answer,  with  liberty 
to  except  and  to  reserve  the  benefit  of  the  plea  to  the  hear- 
ing. After  stating  the  view  upon  which  he  proceeded,  and 

1  Taylor  ».  Beech,  1  Ves.  Sr.  297. 

2  Whaley   v.   Bagnel,   1    Bro.   P.  C.  345.     The   report  furnishes  no 
opinions  in  the  case,  only  a  brief  note  of  judgment  at  the  end  of  tho 
arguments. 


644  STATUTE   OF  FRAUDS.  [CH.   XX. 

which  has  already  been  referred  to,1  he  says,  "I  am  aware, 
that  except  the  case  determined  by  Lord  Macclesfield,2  there 
rs-  no  other;  the  opinion  I  give  is,  that  if  nothing  had  been 
stated  in  the  bill  but  a  parol  agreement,  if  the  defendant 
pleads,  he  must  support  his  plea  by  an  answer,  denying  the 
parol  agreement,  the  only  effect  of  the  statute  being  that  it 
shall  not  be  proved  aliunde.  If  he  answers  and  says  there 
was  no  parol  agreement,  I  think  that  no  evidence  that  can 
be  given  will  sustain  the  suit.  If  this  doctrine  be  not  main- 
tainable, the  judgment  I  am  giving  is  wrong."3  Finally,  in 
delivering  judgment  upon  the  whole  case,  he  asserts  the 
same  view ;  but,  an  answer  having  been  filed,  in  which  the 
agreement  charged  was  confessed,  the  plea  of  the  statute  as 
to  the  relief  was  allowed. 

§  530.  A  few  years  later,  in  the  case  of  Moore  v.  Edwards, 
Lord  Loughborough  seems  to  have  taken  the  rule  as  settled, 
according  to  the  view  expressed  by  Lord  Thurlow.  Upon  a 
bill  for  specific  performance  of  a  verbal  agreement  to  make  a 
lease,  the  defendant  pleaded  the  statute  and  made  answer, 
denying  that  the  acts  alleged  were  done  in  part-performance, 
as  was  charged  in  the  bill.  Lord  Loughborough  held  the 
answer  to  be  argumentative,  and  ordered  the  plea  to  stand 
for  answer  with  liberty  to  except,  benefit  to  be  saved  at  the 
hearing;  and  on  the  defendant's  moving  that  the  words, 
"with  liberty  to  except,"  be  struck  out,  or  the  following 
added,  "  except  as  to  such  part  of  the  said  plea  which  insists 
upon  the  Statute  of  Frauds  and  Perjuries  in  bar  to  the  dis- 
covery of  the  agreement  therein  mentioned,"  his  Lordship 
said  the  order  was  right,  and  added,  "  saving  the  benefit  of 
the  plea  to  the  hearing  gives  you  a  right  to  insist  upon  the 
Statute  of  Frauds  as  a  defence  to  the  suit ;  but  it  does  not 
exempt  you  from  the  discovery. "  4 

1  Ante,  §  522. 

2  Child  v.  Godolphin,  1  Dick.  39,     His  Lordship's  attention  does  not 
seem  to  have  been  called  to  the  various  dicta  before  referred  to  in  the  text. 

8  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  567. 
*  Moore  v.  Edwards,  4  Yes.  23. 


CH.   XX.]  PLEADING.  645 

§  531.  But  in  the  latest  English  case  bearing  upon  this 
question  Lord  Eldon  puts  the  case  of  a  defendant  answering 
as  to  the  acts  of  part-performance,  when  alleged,  and  insist- 
ing that  he  was  not  bound  to  answer  whether  there  was  a 
parol  agreement  or  not,  as  raising  a  difficulty  which  he  had 
never  been  able  to  get  over;  and  this  certainly  goes  to  show 
that  he  did  not  regard  it  as  settled  that  the  statute  could  not 
be  pleaded  in  bar  of  discovery.1 

§  532.  Upon  the  whole,  it  would  seem  to  be  by  no  means 
clear  but  that  the  present  English  doctrine,  whatever  earlier 
decisions  may  go  to  establish,  is  against  allowing  the  bar  to 
the  discovery.  Lord  Redesdale  comes  to  the  conclusion,  in 
the  last  edition  of  his  treatise  on  Equity  Pleadings,  that  "  it 
may  now  be  doubtful  whether  a  plea  of  the  statute  ought  in 
any  case  (except  perhaps  the  case  of  a  trust),2  to  extend  to 
any  discovery  sought  by  the  bill. " 3  Other  text-writers, 
however,  appear  to  entertain  a  contrary  opinion.4 

§  533.  In  our  own  country,  the  weight  of  judicial  authority 
may  be  said  to  be  in  favor  of  allowing  the  bar  to  the  discovery, 
the  courts  both  of  Vermont5  and  Virginia6  having  adopted 
that  position  as  agreeable  to  the  soundest  principles  and  the 
most  approved  precedents.  It  must  be  observed,  however, 
that  the  learned  Chancellor  of  New  York  does  not  appear  to 
coincide  in  this  view,  when  he  lays  it  down  that  if  the  bill 
states  an  agreement  generally,  which  will  be  presumed  a 
legal  contract  until  the  contrary  appears,  the  defendant 
"must  either  plead  the  fact  that  it  was  not  in  writing,  or 
insist  upon  that  defence  in  his  answer."7 

§  534.  The  same  reasoning  upon  which  it  is  maintained 
that  a  defendant  may  insist  upon  the  statute  in  bar  of  the 

i  Rowe  v.  Teed,  15  Ves.  372. 

8  Post,  §  534. 

•  Mitf.  PL  (Oth  Am.  from  5th  Eng.  Ed.)  312. 

4  Cooper,  Eq.  PI.  256;  Story,  Eq.  PL  §  763. 

6  Meach  v.  Stone,  1  D.  Chip.  182. 

6  Argenbright  r.  Campbell.  3  Hen.  &  M.  144. 

7  Cozine  r.  Graham,  2  Paige,  182. 


646  STATUTE   OF  FRAUDS.  [CH.   XX. 

discovery  as  to  the  fact  of  the  agreement,  seems  to  apply 
where  the  bill  seeks  to  enforce  a  trust  resting  in  parol.  If 
he  may.  as  we  have  seen  it  is  the  better  opinion  that  he  may, 
insist  upon  the  statute  in  bar  of  the  execution  of  the  trust, 
it  is  nugatory  to  force  him  to  discover  as  to  its  existence. 
There  appears  to  be  no  case  in  which  the  question  has  been 
distinctly  under  consideration.  The  cases  where  a  discovery 
has  been  required  as  to  trusts  alleged  to  be  imperfectly 
declared,  or  illegal  or  fraudulent,  are  not  applicable;  as 
there  the  answer  is  made  evidence  not  to  set  up  the  trust, 
but  to  defeat  the  defendant's  apparent  title,  and  to  found  a 
decree  for  a  resulting  trust  to  the  heir.1 

§  535.  As  to  the  burden  of  proof,  the  plaintift  having 
alleged  a  certain  contract,  and  the  defendant  having  answered 
that  the  alleged  contract  was  not  actionable  unless  in  writ- 
ing, and  was  not  in  writing,  the  burden  is  on  the  plaintiff  to 
prove  the  writing  without  which  his  action  cannot  be  main- 
tained,2 unless  the  contract  was  made  in  another  State,  in 
which  case  it  is  said  that  the  law  presumes  that  it  was  made 
in  conformity  with  the  law  of  that  State,  and  casts  upon  the 
party  maintaining  the  contrary  the  burden  of  proving  it.3 
As  to  the  general  presumption,  when  nothing  more  appears 
than  the  existence  of  the  contract,  that  it  was  a  contract  in 
writing,  the  case  of  Stout  v.  Ennis  is  instructive.4 

1  Ante,  §  103. 

2  Jonas  v.  Field,  83  Ala.  447;  Lowe  v.  Hamilton,  132  Ind.  406;  Jones 
v.  Hauler,  95  Ala.  529. 

8  Miller  r.  Wilson,  146  111.  523. 
4  Stout  v.  Ennis,  28  Kans.  706. 


APPENDIX. 


STATUTE  29  CAR.  II.  CAP.  3. 

An  Act  for  prevention  of  Frauds  and  Perjuryes. 

For  prevention  of  many  fraudulent  Practices  which  are  com- 
monly endeavoured  to  be  upheld  by  Perjury  and  Subornation 
of  Perjury  Bee  it  enacted  by  the  King's  most  excellent  Majestic 
by  and  with  the  advice  and  consent  of  the  Lords  Spirituall  and 
Temporall  and  the  Commons  in  this  present  Parlyament  assem- 
bled and  by  the  authoritie  of  the  same  That  from  and  after  the 
fower  and  twenty eth  day  of  June  which  shall  be  in  the  yeare 
of  dur  Lord  one  thousand  six  hundred  seaventy  and  seaven  All 
Leases  Estates  Interests  of  Freehold  or  Termes  of  yeares  or  any 
uncertaine  Interest  of  in  to  or  out  of  any  Messuages  Mannours 
Lands  Tenements  or  Hereditaments  made  or  created  by  Liver}' 
and  Seisin  onely  or  by  Parole  and  not  putt  in  Writeing  and  signed 
by  the  parties  soe  makeing  or  creating  the  same  or  their  Agents 
thereunto  lawfull}'  authorized  by  Writeing,  shall  have  the  force 
and  effect  of  Leases  or  Estates  at  Will  onely  and  shall  not  either 
in  Law  or  Equity  be  deemed  or  taken  to  have  any  other  or  greater 
force  or  effect,  Any  consideration  for  makeing  any  such  Parole 
Leases  or  Estates  or  any  former  Law  or  usage  to  the  contrary 
notwithstanding. 

II.  Except  neverthelesse  all  Leases  not  exceeding  the  terme 
of  three  yeares  from  the   makeing   thereof  whereupon   the   Rent 
reserved  to  the  Landlord  dureing  such  terme  shall  amount  unto 
two  third   parts  at  the  least  of  the  full  improved   value  of  the 
thing  demised. 

III.  And  moreover  That  noe  Leases  Estates  or  Interests  either 
of  Freehold  or  Terms  of  yeares  or  any  uncertaine  Interest  not 
being  Copyhold  or  Customary  Interest  of  in  to  or  out  of  an}'  Mes- 
suages Mannours  Lands  Tenements  or  Hereditaments  shall  at  any 


648  APPENDIX. 

time  after  the  said  fower  and  twentyeth  day  of  June  be  assigned 
granted  or  surrendered  unlesse  it  be  by  Deed  or  Note  in  Write- 
ing  signed  by  the  party  soe  assigning  granting  or  surrendring 
the  same  or  their  Agents  thereunto  lawfully  authorized  by  write- 
ing  or  by  act  and  operation  of  Law. 

IV.  And  bee  it  further  enacted  by  the  authoritie  aforesaid 
That  from  and  after  the  said  fower  and  twentyeth  day  of  June 
noe  Action  shall  be  brought  whereby  to  charge  any  Executor  or 
Administrator  upon  any  speciall  promise  to  answere  damages  out 
of  his  owne  Estate  [2]  or  whereby  to  charge  the  Defendant  upon 
any  speciall  promise  to  answere  for  the  debt  default  or  miscar- 
riages of  another  person  [3]  or  to  charge  any  person  upon  any 
agreement  made  upon  consideration  of  Marriage  [4]  or  upon 
any  Contract  or  Sale  of  Lands  Tenements  or  Hereditaments  or 
an}-  Interest  in  or  concerning  them  [5]  or  upon  any  Agreement 
that  is  not  to  be  performed  within  the  space  of  one  yeare  from 
the  makeing  thereof  [6]  unlesse  the  Agreement  upon  which  such 
Action  shall  be  brought  or  some  Memorandum  or  Note  thereof 
shall  be  in  Writeing  and  signed  by  the  partie  to  be  charged 
therewith  or  some  other  person  thereunto  by  him  lawfully 
authorized. 

VII.  And  bee  it   further  enacted  by  the  authoritie   aforesaid 
That  from  and  after  the  said  fower  and  twentyeth  day  of  June 
Declarations  or  Creations  of  Trusts  or  Confidences  of  any  Lands 
Tenements  or  Hereditaments  shall  be  manifested  and  proved  by 
some  Writeing  signed  by  the  partie  who  is  by  Law  enabled  to 
declare  such  Trust  or  by  his  last  Will  in  Writeing  or  else  they 
shall  be  utterly  void  and  of  none  effect. 

VIII.  Provided  alwayes  That  where  an}*  Conveyance  shall  bee 
made  of  an}*  Lands  or  Tenements  by  which  a  Trust  or  Confidence 
shall  or  may  arise  or  result  by  the  Implication  or  Construction  of 
Law  or  bee  transferred  or  extinguished  by  an  act  or  operation 
of  Law  then  and  in  every  such  Case  such  Trust  or  Confidence 
shall  be  of  the  like  force  and  effect  as  the  same  would  have  beene 
if  this  Statute  had  not  beene  made.     Anything  hereinbefore  con- 
tained to  the  contrary  notwithstanding. 

IX.  And  bee  it  further  enacted  That  all  Grants  and  Assign- 
ments of  any  Trust  or  Confidence  shall  likewise  bee  in  Writeing 
signed  by  the  party  granting  or  assigning  the  same  [or *]  by  such 
last  Will  or  Devise  or  else  shall  likewise  be  utterly  void  and  of 

none  effect. 

1  Interlined  on  the  Roll. 


APPENDIX.  649 

XVII.  And  bee  it  further  enacted  by  the  authority  aforesaid 
That  from  and  after  the  said  fower  and  twentyeth  day  of  June 
DOC  Contract  for  the  Sale  of  any  Goods  Wares  or  Merchandises 
for  the  price  of  ten  pounds  Sterling  or  upwards  shall  be  allowed 
to  be  good  except  the  Buyer  shall  accept  part  of  the  Goods  soe 
sold  and  actually  receive  the  same  or  give  something  in  earnest 
to  bind  the  bargaine  or  in  part  of  payment,  or  that  some  Note  or 
Memorandum  in  writeing  of  the  said  Bargaine  be  made  and  signed 
by  the  partyes  to  be  charged  by  such  Contract  or  their  Agents 
thereunto  lawfully  authorized. 


STATUTE  9  GEO.  IV.  CAP.  14.» 

An  Act  for  rendering  a  written  Memorandum  necessary  to  the  Validity  of 
certain  Promises  and  Engagements  [9th  May,  1828]. 

V.  And  be  it  further  enacted,  That  no  Action  shall  be  main- 
tained whereby  to  charge  any   Person  upon  an}-  Promise   made 
after  full  Age  to  pa}'  any  Debt  contracted  during  Infancy,  or  upon 
any  Ratification  after  full  Age  of  any  Promise  or  Simple  Con- 
tract made  during  Infancy,  unless  such  Promise  or  Ratification 
shall  be  made  by  some  Writing  signed  by  the  Party  to  be  charged 
therewith.2 

VI.  And  be  it  further  enacted,  That  no  Action  shall  be  brought 
whereby  to  charge  any  Person  upon  or  by  reason  of  any  Repre- 
sentation or  Assurance  made  or  given  concerning  or  relating  to 
the  Character,    Conduct,   Credit,  Ability,  Trade,   or  Dealings  of 
any  other  person,  to  the  Intent  or  Purpose  that  such  other  Per- 
son may  obtain  Credit,  Monej',  or  Goods  upon,8  unless  such  Repre- 
sentation or  Assurance  be  made  in  Writing,  signed  by  the  Party 
to  be  charged  therewith.4 

VII.  *  And  Whereas  by  an  Act  passed  in  England  in  the  Twenty- 
ninth  Year  of  the  Reign  of  King   Charles  the  Second,  intituled 

1  Commonly  called  Lord  Tender-ten's  Act.     See  ante,  in  the  text,  §  181. 

8  As  to  the  memorandum  required  by  this  section,  see  Harris  v.  Wall.  1  Exch. 
122 ;  Hunt  v.  Massey,  5  Barn.  &  Adol.  902  ;  Hartley  v.  Wharton,  11  Adol.  &  Ell. 
934 ;  Hyde  v.  Johnson,  2  Bing.  N.  R.  776. 

3  Sic.    See  ante,  in  the  text.  §  181. 

4  See  Swann  v.  Phillips,  8  Adol.  &  Ell.  457 ;  Turnley  v.  Macgregor,  6  Man.  & 
G.  46  ;  Devaux  v.  Steinkeller,  6  Bing.  N.  R.  84 ;  Hasock  v.  Fergusson,  7  Adol 
&  Ell    86. 


650  APPENDIX. 

An  Act  for  the  Prevention  of  Frauds  and  Perjuries,  it  is,  among 
other  Things,  enacted  that  from  and  after  the  Twenty-fourth  Day 
of  June,  One  thousand  six  hundred  and  seventy-seven,  no  Con- 
tract for  the  Sale  of  any  Goods,  Wares,  and  Merchandizes,  for  the 
Price  of  Ten  Pounds  Sterling  or  upwards,  shall  he  allowed  to  be 
good  except  the  Buyer  shall  accept  Part  of  the  Goods  so  sold,  ana 
actually  receive  the  same,  or  give  something  in  earnest  to  bind  the 
Bargain,  or  in  part  of  Payment,  or  that  some  Note  or  Memoran- 
dum in  Writing  of  the  said  Bargain  be  made  and  signed  by  the 
Parties  to  be  charged  by  such  Contract,  or  their  Agents  thereunto 
lawfully  authorized :  And  '  whereas  a  similar  Enactment  is  con- 
tained in  an  Act  passed  in  Ireland  in  the  Seventh  Year  of  the 
Reign  of  King  William  the  Third :  And  Whereas  it  has  been 
held,  that  the  said  recited  Enactments  do  not  extend  to  certain 
Executory  Contracts  for  the  Sale  of  Goods,  which  nevertheless  are 
within  the  Mischief  thereby  intended  to  be  remedied  ;  and  it  is 
expedient  to  extend  the  said  Enactments  to  such  Executory  Con- 
tracts ; '  Be  it  enacted,  That  the  said  Enactments  shall  extend  to 
all  Contracts  for  the  Sale  of  Goods  of  the  Value  of  Ten  Pounds 
Sterling  and  upwards,  notwithstanding  the  Goods  may  be  intended 
to  be  delivered  at  some  future  Time,  or  may  not  at  the  Time  of 
such  Contract  be  actually  made,  procured,  or  provided,  or  fit  or 
ready  for  Delivery,  or  some  Act  may  be  requisite  for  the  making 
or  completing  thereof,  or  rendering  the  same  fit  for  Delivery. 

X.  And  be  it  further  enacted,  that  this  Act  shall  commence 
and  take  effect  on  the  First  Day  of  January  one  thousand  eight 
hundred  and  twenty-nine. 


MERCANTILE  LAW  AMENDMENT  ACT,  19  &  20  VICT.  CAP.  97. 

An  Act  to  amend  the  Laws  of  ENGLAND  and  Ireland  affecting  Trade  and 
Commerce  [2dth  July,  1856]. 

,  III.  No  special  Promise  to  be  made  by  any  Person  after  the 
passing  of  this  Act  to  answer  for  the  Debt,  Default,  or  Miscarriage 
of  another  Person,  being  in  Writing,  and  signed  by  the  Party  to  be 
charged  therewith  or  some  other  Person  by  him  thereunto  law- 
fully authorized,  shall  be  deemed  invalid  to  support  an  Action, 
Suit,  or  other  Proceeding  to  charge  the  Person  by  whom  such 


APPENDIX.  651 

Promise  shall  have  been  made,  by  reason  only  that  the  Considera- 
tion for  such  Promise  does  not  appear  in  Writing,  or  by  neces- 
sary Inference  from  a  written  document. 


SUPREME  COURT  OF  JUDICATURE  ACT  AMENDMENT,  1873. 
38  £  39  Viet.  Ch.  77,  Order  XIX. 

23.  When  a  contract  is  alleged  in  any  pleading,  a  bare  denial 
of  the  contract  by  the  opposite  party  shall  be  construed  only  as 
a  denial  of  the  making  of  the  contract  in  fact,  and  not  of  its  legal- 
ity or  its  sufficiency  in  law,  whether  with  reference  to  the  Statute 
of  Frauds  or  otherwise. 


INDEX. 


REFERENCES    ARE   TO   THE    SECTIONS. 


ABILITY, 

representations  as  to,  181-185. 
ACCEPTANCE, 

of  a  bill  of  exchange,  verbal,  172,  172a. 

for  accommodation,  174. 

of  goods  sold,  what  constitutes:  — 

conduct  of  the  buyer,  316,  3166,  321e. 

conduct  of  the  seller,  321d, 

mere  words,  320. 

of  specific  goods,  and  of  goods  unspecified  at  the  time  of  sale,  distin- 
guished, 316c,  316</. 

how  shown,  321a,  3216,  321c,  326. 

title,  passage  of,  316c. 

need  not  be  final,  328,  328a. 
.     subsequent  return  of  the  goods,  330,  331,  332. 

goods  not  existing  at  time  of  acceptance,  336. 

unfinished  goods,  316^7. 

refusal  to  examine,  31 6e. 

acts  of  dominion  or  ownership,  316/,  316A,  316i,  326,  328. 

marking  the  goods,  325. 

unexplained  retention,  316/7,  333. 

dealings  with  bill  of  lading,  31  Qi. 

resale,  328,  332. 

examination  328a. 

receipt  by  a  carrier,  327a,  3276,  329. 

See  also  Acceptance  and  Receipt. 
ACCEPTANCE   AND  RECEIPT, 
of  goods  sold  :  — 

proof  of,  320-321e,  326. 

proof  of  the  contract  distinct  from,  319,  326a,  329. 
acceptance  and  receipt  distinct,  31 6a. 
when  they  may  take  place,  337,  338. 

acceptance  before  or  after  receipt,  338. 

before  action  brought,  338. 


654  INDEX. 

ACCEPTANCE   AND   RECEIPT  —  continued. 
by  agent,  327,  327a. 

one  party  agent  of  the  other,  327. 
carriers,  327a,  3276,  329. 
of  "  a  part  of  the  goods,"  334,  3346,  335,  336. 

by  sample  taken,  334. 

of  "  the  goods  so  sold,"  {.  e.  by  the  contract  sued  upon,  334a. 
sales  of  several  lots,  335. 
sales  by  auction,  335. 
as  giving  validity  to  the  contract,  339. 

See  Validity. 
revocation  of,  340. 

See  also  the  separate  titles. 
ACCOMMODATION   ACCEPTANCE,  174. 
ACCOUNT   STATED, 

a  good  memorandum  of  agreement,  346. 
ACQUIESCENCE, 

in  boundary  line,  75. 
ACT   OF  LAW, 
estates  by,  77. 

See  Surrenders  ;  Operation  of  Law. 
ADMINISTRATORS.     See  Executors. 
ADMISSION, 

of  verbal  contract  in  defendant's  answer,  ground  for  enforcing  it,  499- 

502. 

must  be  of  the  agreement  charged,  501,  502. 
of  mistake,  qu.,  if  ground  for  enforcing  on  bill  to  reform  and  enforce, 

500. 

of  value,  verbal  contract  treated  as,  126. 
ADVERSE   POSSESSION, 

in  cases  of  boundaries,  75. 
AGENCY, 

cases  of  guaranty  confounded  with,  206-209,  211. 

See  Guaranties. 

resulting  trusts  in  cases  of,  96. 
AGENT, 

in  cases  of  conveyances,  10-17. 
who  may  be,  14. 
how  appointed,  10-16. 
in  cases  of  contracts,  364,  367-370a. 
who  may  be,  367-369. 
how  appointed,  370,  370a. 

making  memorandum  after  termination  of  agency,  370&. 
signature  by,  13,  364,  370c. 
under  the  Tenterden  Act,  370c. 
ratification  of  his  acts,  14a,  146,  17,  370a. 
acceptance  and  receipt  by,  327,  327a. 
AGREEMENT, 

and  bargain  distinguished,  381,  381a. 


INDEX.  655 

AGREEMENT  —  continued. 
force  of  the  word,  387. 
for  leases,  when  leases,  7. 

See  Contracts ;  Evidence. 
ALIQUOT  PART, 

of  purchase  money,  in  cases  of  resulting  trust,  86. 
ALTERATION, 

of  memorandum  after  signature,  361. 

of  written  agreement  by  subsequent  parol  stipulation,  409&-428. 

See  Cancellation  ;  Parol  Evidence. 
AMBIGUITIES, 

in  memorandum,  parol  evidence  to  explain,  385. 
"ANOTHER  PERSON," 
definition  of  the  term,  188. 

See  Guaranties. 
ANSWER  IN  CHANCERY, 

of  trustee,  sufficient  declaration  of  trust,  100-103. 
admission  of  verbal  contract  in,  499-502. 

See  Pleading. 
ARBITRATORS, 

authority  of,  to  make  partition,  15. 

transfers  by,  78. 
ASSENT, 

of  landlord  to  surrender,  56. 
oral  to  written  offer.     See  Memorandum. 
ASSIGNMENT  OF  DOWER.     See  Act  of  Law. 
ASSIGNMENTS, 

verbal,  of  leases  within  the  statute,  necessarily  invalid,  41. 

of  existing  term,  8. 

seal,  when  needed,  42. 

and  surrender  of  verbal  leases,  45,  46. 

when  amounting  to  a  surrender,  55. 

See  Act  of  Law ;  Mortgage  ;  Surrenders. 
ATTORNEY, 

signature  by,  for  principal,  13. 
authority  of,  under  seal,  14,  14a,  146. 

oral  guaranty  of  client's  debt  by,  enforced,  138. 

See  Agent. 
ATTORNMENT, 

of  bailee  to  purchaser,  in  sales  of  goods,  etc.,  319a. 
AUCTION  SALES, 

of  land,  covered  by  the  statute,  264. 

of  goods,  etc. ,  covered  by  the  statute,  293. 

See  Acceptance  and  Receipt. 
AUCTIONEER, 

his  entry  a  good  memorandum,  351. 
as  agent  for  signing  memorandum,  353,  353a,  369. 
his  clerk,  369. 


656  INDEX. 

AUTHORITY, 

of  agent,  14,  14a,  146. 
to  give  a  license,  27n. 

See  Agent. 

B. 
BAIL, 

verbal  promise  to  become,  for  third  person,  175. 
BANKRUPT, 

transfer  by,  in  pursuance  of  oral  contract,  136. 
BANKRUPTCY.     See  Operation  of  Law. 
BARGAIN, 

force  of  the  word,  389. 

See  Agreement. 
BARTER, 

of  lands,  contract  for,  76,  271. 

of  goods,  contract  for,  293. 

BILL   OF  LADING, 

acceptance  shown  by  dealings  with,  316i. 

BILL  OF   PARCELS, 

a  sufficient  memorandum  of  agreement,  347. 
BILLS  AND  NOTES.  See  Negotiable  Paper. 
BLANK, 

signature  in,  360. 
BOARD   AND    LODGING, 

agreements  for,  20. 

See  Leases. 
BOND, 

verbal  promise  to  give  bail  for  third  person,  175. 

to  become  surety  upon,  158-162. 
BOOK   ENTRIES, 

manifesting  trust  by,  98. 

evidence  in  cases  of  guaranty,  198. 
BORROWED  MONEY, 

in  cases  of  resulting  trust,  90. 
BOUGHT   AND   SOLD  NOTES, 

as  memoranda,  351,  351a. 
BOUNDARIES, 

verbal  settlement  of  disputed,  75,  269. 

oral  agreements  as  to,  a  license  for  trespass,  75. 
BROKER, 

his  entry,  a  sufficient  memorandum,  351. 
bought  and  sold  notes,  351. 

as  agent  for  signing  the  memorandum,  369. 

his  clerk,  369. 

BUILDING   MATERIALS,  234  note. 
BURDEN  OF   PROOF,  535. 


INDEX.  657 

c. 

CANCELLATION, 

of  title-deeds,  does  not  devest  corporeal  estate,  59. 

secus  with  incorporeal  estate,  59. 

of  unrecorded  deed,  effect  of,  60,  61. 

estoppel  by,  61. 

not  necessary  to  validity  of  surrender,  43. 
See  Surrenders. 

CARRIER, 

acceptance  and  receipt  of  goods  by,  327a,  3276,  329. 

CASH, 

sales  for,  receipt  how  shown,  317a,  323. 
CESTUI  QUE   TRUST, 

signature  of,  when  necessary,  106. 
CHANGE  OF  TENANCY, 

surrender  by,  53. 
CHOSES  IN  ACTION, 

whether  goods,  etc.,  within  seventeenth  section,  295-298. 
CLERKS, 

of  auctioneers  or  brokers,  as  agents  for  signing  the  memorandum,  369. 
COMMISSION, 

for  land  sale,  268. 
COMMISSION  MERCHANT, 

as  agent  for  signing  the  memorandum,  369. 
COMMON  LANDS, 

partitions  by  proprietors  of,  74a. 
CONCURRENT   OBLIGATIONS, 

defined,  192,  193,  200-214e. 
CONDITION, 

sales  upon,  293. 
CONFLICT   OF  LAWS, 

in  cases  under  the  statute,  136. 
CONSIDERATION, 

of  contract  executed  on  one  side,  when  recoverable,  117-127. 
See  Contracts ;  Payment. 

in  cases  of  guaranty.     See  Guaranties. 

statement  of,  in  memorandum  of  agreement,  387-408. 

See  Memorandum. 
in  declaration  of  trust,  112. 

in  case  of  marriage  settlements,  216. 

See  Marriage,  Agreements  in  Consideration  of. 
CONTINGENCY, 

as  affecting  contracts  not  to  be  performed,  etc.     See  Year. 
CONTRACTORS, 

promises  to,  199a. 

See  Guaranties. 

42 


658  INDEX. 

CONTRACTS, 

verbal,  to  convey  land,  trust  in,  82. 

to  buy  a  contract  for  laud,  229. 
within  statute,  how  far  valid  or  available  in  equity,  118,  129,  130. 

See  Equity. 
at  law,  127,  131-188;. 

damages  for  breach  of,  qu.,  127. 

not  a  ground  of  defence,  131. 

money  orally  agreed  to  be  paid  not  a  set-off,  131. 

justification  for  acts  done  under  it,  133. 

loss  on  re-sale  after  breach  of,  134. 

discharge  from,  not  a  valid  consideration  for  subsequent 
agreement,  134. 

forfeit  for  non-performance  of,  not  recoverable,  134. 

defence  of  statute  may  be  waived,  135. 

third  parties,  how  far  valid  as  to,  135,  135a. 

garnishee,  135. 

guarantor,  135. 

perjury  in  regard  to,  1356. 

of  hiring,  sufficient  to  give  a  settlement,  1356. 

destroys  implication  of  holding  over  on  old  terms,  1356. 

conflict  of  laws  as  to,  136. 

after  repeal  of  statute,  136. 

transfer  by  bankrupt  in  pursuance  of,  136. 

of  hiring,  violation  of,  not  covered  by  statute  imposing  a 
penalty,  137a. 

enforced  against  attorneys,  etc.,  138. 

may  be  evidenced  by  a  letter  repudiating  it,  138a. 

made  on  Sunday,  1386. 

appropriation  of  payment  to  a  debt  due  on,  138c. 
passage  of  title  under  verbal  contracts,  138e-138z. 

statute  satisfied  after  loss  of  goods,  138e. 

as  affecting  third  parties,  138/-138/. 

conflict  among  authorities,  138^,  138/i. 

insurable  interest,  138A. 

discussion  of  the  principle,  138i. 
execution  of  verbal  contracts,  116-128. 

executed  as  to  statutory  part,  117-1176. 
executed  as  to  non-statutory  part,  118,  118o. 
in  equity,  118. 

See  Equity. 
at  law,  118. 

recovery  of  damages,  118. 
property  delivered,  118,  124. 
services  rendered,  118. 
must  be  to  defendant's  use,  118a. 
improvements,  119. 
profits  of  occupation,  119. 
lien  for  money  advanced,  120. 
possession  to  be  first  surrendered,  121. 


INDEX.  659 

CONTRACTS  —  continued. 

party  in  fault  cannot  recover,  122,  123. 
form  of  action  to  recover  for  property  or  services,  124-126. 
contract,  how  far  evidence,  124-126. 
of  res  gestie,  125. 

of  value  of  property  or  services,  126. 
as  an  admission  of  value,  126. 
execution,  to  whom  available  in  defence,  128. 
in  part  within  the  statute,  139-152. 
when  indivisible,  140-142. 
when  divisible,  143. 

recovery  upon  part  not  within,  144-150. 
form  of  action,  147. 
execution  of  invalid  part,  150. 
in  the  alternative,  one  branch  being  within  the  statute  and  the  other 

not,  152. 
See  Admission ;  Equity;  Fraud;  Goods,  Sales  of ;  Guaranties;  Land, 

Contracts  for ;  Marriage;  Memorandum;  Year. 
CONVEYANCES.     See  Boundaries;  Cancellation;  Dower;  Exchange; 

Judicial  Sales  •  Mortgage  ;  Partitions  ;  Deed. 
CORPORATION, 

records  of,  when  a  memorandum,  346. 
execution  of  instruments  by,  13. 
promise  by  member  to  answer  for  debts  of,  164. 
COVENANTS, 

force  of,  under  verbal  leases,  39. 
to  convey,  when  declaration  of  trust,  110. 
CREATION, 
of  trust,  104. 

See  Trusts. 
CREDIT, 

of  a  third  party,  representations  in  regard  to,  181-185. 

to  whom  given,  cases  of  guaranty,  197-200. 

to  be  given,  qu.,  if  it  must  appear  in  memorandum  of  sale,  382,  383. 

See  Guaranties. 
CROPS, 

agreement  to  share,  20. 
contract  for,  235-257. 

See  Land;  Leases. 


D. 

DAM, 

right  to  erect  and  maintain,  127a. 
DAMAGES, 

measure  of,  in  action  on  implied  promise  to  pay  for  land,  etc.,  126. 
agreements  to  release,  in  case  of  land  taken,  270. 
for  breach  of  a  verbal  contract  with  a  third  person,  135. 
See  Contracts. 


660  INDEX. 

DATE, 

of  bargain  for  goods,  339. 
of  a  lease.     See  Day. 

DAY, 

of  date  of  a  lease,  when  included  in  computing  its  duration,  36. 

DEATH, 

effect  of,  upon  contracts  not  to  be  performed,  etc.     See  Year. 

DEBT, 

goods  furnished  in  payment  of,  when  a  sale,  2936. 

of  another,  within  the  statute,  definition  of,  155. 

contract  for  the  purchase  of,  distinguished  from  a  guaranty,  210. 

See  Guaranties. 
DECEIT, 

in  representation  as  to  credit,  etc.,  183-185. 

actions  for,  arising  upon  verbal  contracts,  135a. 

in  getting  title,  giving  equitable  jurisdiction,  96,  445a. 

DECLARATION   OF   TRUST.     See  Trusts. 

DECLARATIONS, 

of  trustee  evidence  of  a  resulting  trust,  91-93. 

DEED, 

whether  lease  for  years  must  be  by,  6,  7. 

conveyance  of  freehold  must  be  by,  6. 

not  necessary  for  assigning,  granting,  or  surrendering  existing  terms, 

8,  42. 

effect  of  cancelling,  altering,  or  redelivering,  44,  59-61. 
mortgage  in  equity  from  deposit  of,  62-64. 
where  required  at  common  law.  required  still,  42. 
recital  in,  declaration  of  trust,  99. 
absolute,  trust  shown  by  parol,  93. 
absolute,  mortgage  shown  by  parol,  441a. 
when  good  as  a  memorandum,  354a,  3546. 

See  Seal ;  Signature ;  Surrender ,  Memorandum. 

DEFAULT, 

of  another,  within  the  statute,  definition  of,  155,  195. 

See  Guaranties. 
DEFECTIVE   SIGNATURE, 

invalidating  a  deed,  13. 

DEFENCE, 

of  the  statute  to  whom  open,  128,  135. 

upon  a  verbal  contract  within  the  statute,  not  allowed  at  law,  122, 

122a,  126,  131-134,  435. 
allowed  in  equity,  129,  130. 

See  Contracts;  Pleading. 
DELAY, 

in  returning  goods  sold,  showing  acceptance,  316^,  333. 
DEL  CREDERE, 

agent,  contract  of,  with  principal  not  collateral,  202,  note,  213. 


INDEX.  661 

DELIVERY, 

of  possession.     See  Equity. 

of  goods  sold.     See  Receipt  of  Goods  Sold. 
DELIVERY  ORDER, 

dealing  with,  evidence  of  receipt,  319a. 
DEMISES, 

parol,  7. 
DEPOSIT, 

of  title-deeds.     See  Equitable  Mortgages. 

of  earnest  money  with  a  third  person,  3426. 
DEPOSITION, 

of  trustee  good  declaration  of  trust,  100. 
DEVISE   OF   LANDS, 

trust  created  by,  107. 
DISCHARGE, 

of  original  debtor,  193,  194. 

from  oral  contract,  not  good  consideration,  134. 

oral,  of  written  contract,  429-436. 

See  Parol  Evidence. 
or  mortgage,  267. 

See  Guaranties. 
DISCOVERY, 

whether  statute  may  be  pleaded  in  bar  of,  520-534. 
DOCKAGE, 

agreement  for,  when  a  lease,  20. 
DOCUMENTS, 

of  title,  dealings  with,  showing  acceptance,  316t. 
DOWER, 

assignment  of.     See  Act  of  Law. 

contract  to  release,  etc. ;  requires  writing,  230. 

right  of,  whether  controlled  by  husband's  contract  of  sale,  135,  note. 


E. 


EARNEST,   AND  PART-PAYMENT, 

effect  of  earnest  given,  341. 
must  be  something  of  value,  341. 
must  be  actually  paid,  341. 
tender  of,  not  sufficient,  3426. 
money  sent  by  mail,  3426. 
deposit  with  a  third  person,  3426. 
part-payment,  what  constitutes,  342,  342o. 
agreement  as  to,  not  payment,  342. 
a  question  of  fact,  342a,  note. 
when  it  may  take  place,  343. 
EASEMENT, 

contract  for,  requires  writing,  232. 
revoked  by  license  given,  27a. 


662  INDEX. 

EMBLEMENTS, 

doctrine  of,  as  affecting  sales  of  crops,  2546. 

ENTIRE   CONTRACT.     See  Contracts. 
ENTRIES, 

manifestation  of  trust  by,  98. 
evidence  in  cases  of  guaranty,  198. 
ENTRY, 

Under  short  leases,  37,  37a,  38. 
when  necessary  to  complete  a  surrender,  54-56. 
EQUITABLE   CLAIMS, 

upon  a  verbal  contract  for  land,  cut  off  by  the  statute,  3. 
EQUITABLE   ESTATES, 

contract  for,  must  be  in  writing,  229. 
EQUITABLE   MORTGAGES,  62-66. 
EQUITY, 

jurisdiction  and  power  of  courts  of,  —  how  far  limited  by  the  stat- 
ute, 129,  130. 

compensation  for  improvements,  119. 
will  not  interfere  to  set  aside  a  verbal  contract,  when  other  party  is 

not  in  default,  123. 

nor  to  enforce  legal  rights  against  equities  arising  from  verbal  con- 
tract, 126. 

nor  to  set  aside  conveyance  under  verbal  contract,  because  of  inter- 
vening written  one,  130. 

nor  to  compel  principal  to  vacate  his  agent's  oral  contract,  130,  note. 
enforcement  of  oral  contracts,  447-492. 

binding  effect  of  statute,  437. 
fraud  giving  jurisdiction,  438-445a. 

See  Fraud. 

not  mere  breach  of  agreement,  439. 
refusal  to  execute  a  writing,  440,  441-444a. 
deed  converted  into  a  mortgage,  441a-441c. 
acts  done  on  the  faith  of  the  contract,  447,  457a,  458. 
equitable  estoppel,  448-4486,  457a. 
jurisdiction  of  courts  of  equity,  449,  450. 
principle  upon  which  courts  of  equity  proceed,  455a. 
no  effect  to  give  jurisdiction  at  law,  451. 
party  relying  upon,  must  show  readiness  to  perform,  452. 
acts  must  be  done  by  the  plaintiff,  453. 
must  be  in  pursuance  of  the  contract,  454,  457,  458. 
defendant  charged  upon  equities  resulting  from  acts  done,  455a. 
how  far  they  must  prove  the  contract.  455,  455a,  456. 
circumstances  of  each  case  govern,  458a. 
reference  to  a  Master  to  ascertain,  496,  497. 
in  cases  of  marriage  settlement,  the  marriage  is  not  sufficient, 

459. 

marriage  coupled  with  other  acts,  459a. 

acts  merely  preparatory  or  ancillary  to  the  agreement  not  suffi- 
cient, 460. 


INDEX.  663 

EQUITY  —  continued. 

part-performance  doctrine  limited  to  contracts  for  land,  460a. 
payment  of  purchase-money  not  sufficient  of  itself,  461. 
ground  of  this  doctrine,  462. 
secus,  if  not  capable  of  reimbursement,  463,  464. 
it  is  corroboratory  of  other  acts,  465. 
possession,   of  laud  purchased,  as  au  act  of  part-performance, 

465-486. 

qu.,  if  always  indispensable,  466. 
sufficient  of  itself,  467. 
but  not  in  cases  of  gift,  467. 
as  taken  by  the  purchaser  plaintiff,  468-470. 
as  delivered  by  the  vendor  plaintiff,  471. 
general  rules  in  regard  to,  472. 
it  must  be  notorious,  473. 
exclusive,  474. 
of  the  land  claimed,  475. 
in  pursuance  of  the  contract  alleged,  476-482. 
continuance  in  possession,  by  old  tenant,  not  sufficient,  477-480. 
secus  if  additional  rent  paid,  479. 
or  improvements  made,  480. 
must  be  subsequent  to  the  contract,  482. 

with  knowledge  and  consent  of  vendor,  483. 
need  not  be  expressly  stipulated  for,  484. 
must  be  retained  in  pursuance  of  the  contract,  485. 
not  sufficient  merely  because  an  act  of  ownership,  486. 
improvements  made  on  the  faith  of  a  verbal  contract  for  land,  487-492. 
must  be  permanently  beneficial  to  the  estate,  488. 
must  be  subsequent  to  the  contract,  488. 
not  material  whether  judiciously  made  or  not,  489. 
loss  of  value  of.  must  work  a  sacrifice  to  the  purchaser,  490. 
qu.,  if  they  must  be  by  the  contract  stipulated  to  be  made,  491. 
improvements  made  on  the  faith  of  a  gift,  491a. 
possession  coupled  with  improvements,  by  a  son  upon  land  of  his 

parent,  481. 

courts  indisposed  to  extend  doctrine  of  part-performance  farther,  492. 
possession  and  improvements  giving  title  against  third  party,  492a. 
application  of  the  rule  that  the  terms  of  the  contract  must  be  fully 

shown,  493-497. 

where  answer  confesses  the  agreement,  498. 
bill  taken  pro  confesso,  499. 

enforcement  of  agreement  other  than  that  charged  in  the  bill,  500- 
502. 

EQUITY  OF  REDEMPTION, 

agreement  to  extend  time  of,  267. 
contract  for,  must  be  in  writing,  226-229. 

ESCROW, 

deed  deposited  in,  as  a  memorandum,  354a,  note,  3546. 
ESTATES   AT  WILL.     See  Lease*. 


664  INDEX. 

ESTOPPEL, 

of  licensor  to  revoke  a  license  after  expense  incurred,  31. 

in  cases  of  cancellation  or  destruction  of  a  deed,  61. 

in  cases  of  acts  done  on  the  faith  of  verbal  contracts,  457a-458. 

in  cases  of  actual  surrender  of  lease,  53,  56,  57. 
EVIDENCE, 

common-law  rules  of,  not  changed  by  Statute  of  Frauds,  344a. 

secondary,  of  contents  of  lost  memorandum,  346a. 

of  rental  value  of  premises,  40. 

of  contract  price,  in  action  for  value  of  property  delivered,  124-126. 

to  show  relation  of  landlord  and  tenant,  124. 

See  Parol  Evidence. 
EXCHANGE, 

verbal,  of  land,  76. 

contract  to  exchange  land  for  goods,  or  vice  versa,  271,  293. 

of  tenants,  surrender  by,  54. 
EXECUTED  CONTRACTS, 

binding  upon  the  parties,  116. 

executed  in  part,  117-130. 

See  Contracts. 

EXECUTED   LICENSES.     See  Licenses. 
EXECUTION, 

sales  on,  264. 

of  a  deed.     See  Signature. 

EXECUTORS,   OR  ADMINISTRATORS, 

special  promises  by,  to  answer  damages  out  of  their  own  estate,  153, 

186. 

distinction  between  their  liabilities  under  such  promises,  153. 
statute  applies  to  executor's  promises  made  at  any  time  after  testator's 

death,  153. 

to  administrators  only  after  their  appointment,  153. 
not  to  submission  to  arbitration  of  claim  against  estate,  180. 
promise  good  without  writing,  if  estate  discharged,  193,  note. 
authority  of,  to  accept  and  receive,  327,  note. 

See  Guaranties. 
EXECUTORY   AGREEMENTS. 

of  sale  of  goods,  within  statute,  299-303 

F. 
FACTOR, 

guaranty  of,  not  within  the  statute,  202,  note,  213. 

See  Guaranties. 
FALSE   REPRESENTATIONS, 

as  to  credit,  when  actionable,  181-185. 

See  Guaranties. 
raising  a  resulting  trust,  95. 
giving  jurisdiction  to  equity,  438-445a. 
See  Equity. 


INDEX.  665 

FENCE, 

agreement  to  move,  231,  note. 
FIDUCIARIES, 

contracts  with,  or  conveyances  to,  raising  resulting  trust,  96,  96a. 
FIXTURES, 

contract  for,  does  not  require  writing,  234,  236. 

license  to  remove,  27,  note. 

FLOVVAGE, 

rights  of,  28. 

agreements  as  to  damages  for,  270. 
FOREIGN  CONTRACT, 

when  within  statute,  136. 
FORFEIT, 

for  breach  of  verbal  contract  not  recoverable,  134. 
FRAUD, 

raising  a  resulting  trust,  94-96a. 

court  of  equity  will  relieve  against,  notwithstanding  the  statute,  437, 
438. 

such  fraud  must  be  more  than  mere  breach  of  contract,  439,  440. 

verbal  promise  to  make  defeasance,  on  faith  of  which  absolute  convey- 
ance procured,  enforced,  441. 

so  with  promise  to  convey  to  others,  on  faith  of  which  absolute  devise 
made,  442. 

mere  promise  to  observe  agreement,  if  not  put  in  writing,  not  enforced, 
442. 

cases  of  fraud,  when  contract  enforced,  443-445a. 

not  enough  that  bill  alleges  that  it  was  part  of  the  agreement  that  it 
should  be  put  in  writing,  446. 

See  Equity. 

FRUCTUS  INDUSTRIALES, 
contract  for,  235-257. 

See  Land,  Contracts  for. 

FRUCTUS  NATURALES, 
contract  for,  250-257a. 

See  Land,  Contracts  for. 
FUND, 

promise  to  pay  debt  out  of,  187,  206. 

See    Guaranties. 

G. 
GARNISHES, 

payment  by,  under  a  verbal  contract,  135. 

GIFT, 

of  mortgage,  not  good  by  parol,  66. 
of  lands,  467,  49 la. 

GOODS, 

what  a  contract  for  the  sale  of,  within  the  statute,  293,  294. 
no  exception  as  to  parties,  293. 


666  INDEX. 

GOODS—  continued. 

contracts  of  barter,  293. 

auction  sales,  293. 

sheriffs,  293. 

order  for  goods,  293. 

stipulation  for  return  of  article,  293. 

resale  distinguished,  293a. 

rescission  of  contract  distinguished,  293a. 

to  deliver  goods  in  payment  of  a  pre-existing  debt,  293&. 

contracts  to  mortgage,  294. 

to  be  partners  in  purchase  and  sale,  294a 

to  divide  proceeds  of  goods,  2946. 

executory  contracts  of  sale,  300. 

contracts  of  sale,  and  of  work  and  labor,  300-310. 

goods  existing  in  solido,  301-303. 

goods  regularly  manufactured  or  kept  on  hand,  304-307. 

discussion  of  the  principle,  307-309a. 

Lord  Tenterden's  Act,  309. 

contracts  to  procure  and  deliver,  310. 
what  are  goods,  within  the  statute,  296-300. 

stock  or  shares,  296-298. 

promissory  notes,  297. 

bank  notes,  297,  note. 

book  account,  298,  note. 

patent  rights,  297a,  298. 
price,  311-314. 

defendant  must  prove  price  to  exceed  statutory  sum,  311. 

charge  for  delivery,  if  not  special,  included,  311. 

when  uncertain  at  time  of  bargain  made,  311,  312. 

when  none  stipulated,  313. 

when  each  item  of  lot  is  less  than  statutory  sum,  314. 
GRANT, 

of  existing  term,  8. 
GRASS, 

contract  for  sale  of,  etc.,  235-257. 

See  Land,  Contracts  for. 
GROWING  CROPS, 

contracts  for  sale  of,  etc.,  237-258. 
GUARANTIES, 

executors'  and  administrators'  promises,  153,  186. 
what  are  "  debts,  defaults,  or  miscarriages,"  155-162. 

torts  of  third  party  included,  155. 

liability  of  third  party  must  exist,  156,  157,  159. 

it  must  be  clear,  ascertained,  and  enforceable,  156,  157. 

third  party  an  infant  or  married  woman,  156. 

liability  supposed  but  not  actual,  157a. 

if  liability  contingent,  statute  does  not  apply,  196. 

may  be  express  or  implied,  158-161. 

need  not  be  already  incurred,  163. 
special  promise  of  the  guarantor,  166-191. 


INDEX.  667 

GUARANTIES  —  continued. 

means  express  promise,  166. 

where  there  is  a  pre-existing  obligation  to  pay,  statute  does  not 
apply,  1G4. 

nor  where  promise  is  indirectly  to  pay  his  own  debt,  165-172. 
promise  to  indorse  third  party's  note,  etc.,  174,  183. 

promises  made  at  the  time  of  the  transfer  of  negotiable 
paper,  105,  105a. 

promise  to  pay  third  party  amount  due  him  from  promisor's 
creditor,  166a-172. 

verbal  acceptance  of  bill  of  exchange,  having  funds,  172. 

to  accept  his  draft  for  accommodation,  174. 

to  furnish  him  funds  to  pay,  176,  176a. 

to  furnish  goods,  176cr. 

to  execute  bail  bond  for  him,  175. 

to  give  opportunity  of  attaching  his  property,  177. 

by  receiptor  of  attached  property,  to  return  it  on  demand, 
177. 

to  procure  guaranty  to  be  signed,  177. 

to  sell  goods  to  be  applied  in  payment,  178. 

to  pay  third  person's  debt,  if  found  to  be  due,  178. 

to  pay  part  of  debt  in  satisfaction  of  the  whole,  179. 

to  indemnify  against  third  person's  neglect  of  duty,  158-162. 

to  insure,  161,  note. 

warranty  of  title  by  third  person,  162a. 

promise  by  one  jointly  liable  with  others,  164. 

promise  by  partner  to  pay  firm  debts,  164. 

promise  by  a  member  of  a  corporation  to  pay  its  debts,  164. 

promise  by  indorser,  discharged  by  laches  to  pay,  164. 
promisor's  debiting  himself  with  amount  owing  by  another,  178. 
promise  on  new  and  distinct  consideration,  168,  172,  200-213. 
trilateral  liability,  176. 
promise  must  be  to  pay  out  of  guarantor's  own  estate,  186,  187. 

if  to  apply  debtor's  own  funds,  good  without  writing,  187. 

or  if  promisor  holds  funds  to  be  so  applied,  187. 

though  coupled  with  guaranty  that  they  shall  suffice,  187. 
promise  to  the  debtor,  good  without  writing,  188. 
must  be  on  sufficient  consideration,  189-191. 

what  consideration  is  sufficient,  189. 

forbearance  by  creditor,  190. 

same  consideration,  supporting  both  original  promise  and 

guaranty,  191. 

representations  as  to  credit  or  solvency  of  third  person,  181-185. 
Lord  Tenterden's  Act,  181. 
general  and  specific  representations,  182. 
false  representation,  when  actionable,  183. 
intent  or  object,  how  far  material,  184. 
partial  reliance  upon,  184a. 

wherever  proof  of  representation  is  material,  statute  applies,  184ft. 
as  to  residence,  character,  family  connections,  etc.,  183. 


668  INDEX. 

GUARANTIES  —  continued. 

coupled  with  guaranty  of  debt,  185. 

the  special  promise  and  principal  liability  must  concur,  193-199. 
if  original  debt  extinguished,  statute  does  not  apply,  193. 
but  it  may  apply,  though  not  extinguished,  194  and  note. 

See  infra. 

if  extinguished  pending  guaranty,  guaranty  is  discharged,  196. 
third  party  becoming  liable  by  happening  of  contingency  in  the 

interim,  statute  does  not  take  effect,  155,  196. 
if  any  credit  given  to  original  debtor,  statute  applies,  197. 
not  if  both  credited  jointly,  197. 
how  to  determine  to  whom  credit  given,  198-200. 
words  used,  how  far  material,  198-200. 
the  special  promise  must  be  collateral  to  the  principal  liability,  200- 

213. 

purchase  of  lien,  200,  203-205. 

promise  in  consideration  of  surrender  of  lien  or  security,  201. 
such  lien  must  enure  to  the  promisor,  203-205. 
mere  relinquish meiit  of  lien,  205. 

promise  in  consideration  of  releasing  goods  as  a  fund  for  pay- 
ment, 206-209,  211. 

any  new  consideration,  doctrine  of,  207-214e. 
purchase  of  debt,  210. 

guaranty  of  factor  del  credere,  202,  note,  213. 
statute  embraces  only  what  is  essentially  and  distinctively  a  guar- 
anty, 212. 
the  question  when  the  statute  does  not  apply,  although  original 

debtor  remain  liable,  discussed  generally,  214-214e. 
money  paid  under  oral  guaranty,  right  to  recover,  135. 

H. 

HOTEL, 

agreement  for  hire  of  rooms  in,  20. 

See  Leases. 

I. 

IMPLIED   OBLIGATION, 

of  third  party,  promise  to  answer  for,  158-162. 

See  Guaranties. 

IMPLIED   OR   RESULTING   TRUST.     See  Trusts. 
IMPLIED   PROMISE, 

not  within  the  statute,  124-163. 

See  Guaranties. 

action  upon,  in  case  of  land  conveyed,  124. 
IMPROVEMENTS, 

made  under  a  license,  31. 

on  land  orally  purchased,  compensation  for,  119,  120. 

as  ground  for  specific  performance,  487-492. 

See    Equity, 
qu.  if  contract  for,  requires  writing,  233. 


INDEX.  669 

INCAPACITY, 

preventing  signature,  10-126. 
INCORPOREAL  ESTATES, 

conveyance  of,  not  affected  by  statute,  2. 

trust  in,  requires  written  proof,  5. 

contracts  for,  require  memorandum,  5,  230. 
INDEMNITY,  PROMISE  of.     See  Guaranties. 
INDICIA  OF  TITLE, 

dealings  with,  as  showing  acceptance.  316i. 
INDORSE, 

verbal  promise  to,  for  another,  174,  183. 
See  Guaranties. 
INDORSER, 

discharged  by  laches,  promise  of,  to  pay  note,  164, 
INFANTS, 

promises  to  answer  for  liabilities  of,  156. 
INITIALS, 

signature  by,  362. 
INTEREST, 

to  be  paid,  need  not  appear  in  the  memorandum,  382. 

license  coupled  with  an,  27. 

J. 
JOINT  ADVANCES, 

trusts  resulting  from,  85. 
JOINT  CREDIT, 

in  cases  of  guaranty,  197. 
JOINT   TENANTS, 

partitions  by,  73. 
JUDICIAL   SALES, 

of  land,  78,  264,  265. 
JURISDICTION, 

of  courts  of  equity  to  enforce  verbal  agreements,  449,  450. 

K. 
KEY, 

surrender  by  delivery  of,  by  tenant,  55. 

L. 

LAND,  CONTRACTS  FOR, 

trusts  in,  82. 

provision  in  regard  to,  how  far  supplied  by  the  sections  concerning 

conveyances,  226. 

1.  Subject-matter,  what  is  an  interest  in  land,  228-262. 
same  as  in  cases  of  conveyances  and  trust,  228. 
"uncertain  interest,"  228. 
equitable  estates,  229. 


670  INDEX. 

LAND,  CONTRACTS  FOR  —  continued. 

interest  in  contract  for  land,  229. 
equity  of  redemption,  229. 
dower,  230. 

board  and  lodging,  230. 
incorporeal  estates,  230. 
short  leases,  230. 
possession  of  land,  231. 
easements,  232. 

improvements  on  the  land,  233. 
fixtures  not  included,  234,  236. 
buildings  included,  234a. 
walls  and  fences,  2346. 
building  materials,  234  note. 
trees,  crops,  grass,  fruit,  etc.,  235-257a, 
general  rules,  237,  249. 

mere  chattels  when  severed  from  the  land,  236. 
title  to  them  while  growing  cannot  be  orally  proved,  237. 
but  they  may  be  orally  contracted  for  as  chattels  in  prospect 

of  severance,  237,  255. 
examination  of  the  English  cases,  238-244. 
immaterial  that  purchaser  has  liberty  to  enter  and  gather, 

245,  255. 

what  is  their  state  of  growth,  246. 
immaterial  that  they  derive  nourishment  from  the  soil 

in  the  mean  time,  247. 
whether  sale  is   by  the  tract  of  land  or  quantity  of 

product,  240. 
if  benefit  of  land  is  part  of  thing  purchased,  statute  applies, 

248,  249. 
rule  that  fructus  induatriales  are  not  and  prima  vestura  is 

within  the  statute,  examined,  250-257. 

doctrine  of  emblements  as  applied  to  sales  of  crops,  etc.,  2546. 
title  to  crops,  etc.,  passage  of,  254c,  257a, 
examination  of  the  American  cases,  255-257a. 
shares  in  incorporated  companies,  258. 
land  held  by  partnership  treated  as  personalty,  259. 

even  though  partnership  formed  for  express  purpose  of  deal- 
ing in  land,  260. 

between  what  parties  the  rule  holds,  261. 
conflict  of  authority,  260-261/. 
agreement  to  join  in  purchase,  261^r. 
to  form  a  partnership,  to  deal  in  lands,  262. 
2.  Nature  of  the  transaction, 

contract  or  sale,  means  contracts/or  sale,  263. 

contract  to  buy  land,  263. 

to  devise  land,  263. 

to  buy  land  of  third  party,  263. 

to  procure  a  third  party,  to  buy  or  sell,  263a. 

to  make  written'  contract,  266. 


INDEX.  671 

LAND,  CONTRACTS  FOR  —  continued. 

to  leave  lands  by  will,  266. 

to  revive  defunct  written  contract,  267. 

altering  or  discharging  written  contract  by  parol,  267. 

to  execute  mortgage,  267. 

to  execute  defeasance,  267. 

to  convert  mortgage  into  conditional  sale,  267. 

to  foreclose  mortgage,  267. 

to  release  or  discharge  a  mortgage,  267. 

to  revive  defunct  mortgage,  267. 

to  extend  mortgage  to  other  liabilities,  267. 

to  reform  deed  of  land,  441e. 

to  extend  time  of  redemption,  267. 

to  break  down  adverse  title,  268. 

to  release  covenant  of  warranty,  268. 

verbal  guaranty  of  title,  268. 

to  pay  expense  of  searching  title,  268. 

to  pay  over  proceeds  of  land  sold,  268. 

settling  disputed  boundaries,  269. 

restricting  manner  of  using  land,  269. 

reserving  interests  in  land,  269a. 

releasing  land  damages,  270. 

as  to  flowage,  270. 

as  to  payment  of  taxes,  269. 

to  pay  price  of  land  previously  conveyed,  270. 

in  consideration  of  other  land,  goods,  services,  etc.,  271. 

auction  sales.  264. 

sheriff's  sales,  264. 

judicial  sales,  264,  265. 

LANDLORD   AND  TENANT.     See  Leases. 
LEASES, 

written  agreements  for  lease,  7,  9. 

necessity  of  deed,  6. 

necessity  of  seal,  9. 

necessity  of  signature,  9. 

recital  in,  as  surrender,  43. 

surrender  by  taking,  48-52. 
covered  by  the  statute, 

effect  of  different  sections  of  the  statute,  6,  18. 

what  are,  19-31a. 

landlord  and  tenant,  relation  of,  must  exist,  20. 

permission  to  remain  after  notice  to  quit,  not,  20. 

agreement  to  pay  increased  rent  in  consideration  of  repairs,  20. 

agreement  as  to  sharing  crop,  20. 

agreement  for  board  and  lodging,  20. 

agreement  for  rooms,  20. 

leases  and  licenses,  21-31a. 

See  Licenses. 

ticket  of  admission,  23«,  24. 

right  to  erect  and  maintain  a  dam,  28. 


672  INDEX. 

LEASES  —  continued. 

right  of  flowage,  28. 

right  of  digging  ore,  28. 

executed  licenses.     See  Licenses. 
excepted  from  the  statute, 

reservation  of  rent,  32,  32a. 

duration  of,  how  computed,  33,  35,  36. 

in  New  Yoi'k,  34. 

prospective  operation  of  statute,  35. 

application  of  fourth  section  to,  37,  37a. 

entry,  effect  of,  37,  37a. 
verbal  leases,  38-40. 

estates  at  will,  38. 

tenancy  from  year  to  year,  38. 

payment  of  rent,  38. 

lodging-rooms,  38. 

covenants  and  agreements,  39. 

rent,  evidence  of,  40. 

use  and  occupation,  40. 

See  Licenses ;  Assignments;  Surrenders. 
LETTERS, 

sufficient  writing  for  lease,  350,  note. 

for  memorandum  of  contract,  346,  350. 

for  declaration  of  trust,  98,  99,  111. 
LIABILITY, 

of  third  person,  in  cases  of  guaranty,  197. 

See  Guaranties. 
LICENSES, 

mere,  defined,  22-26. 

while  unrevoked,  a  justification  for  trespass,  22. 

not  assignable,  23. 

revocation  of,  22-26,  30-31a. 

authority  to  give,  27,  note. 

to  a  tenant  to  remove  fixtures,  27,  note. 

from  agreement  as  to  boundary,  75. 
coupled  with  an  interest,  27. 

irrevocable,  27. 
revoking  an  easement,  27a. 
executed  and  executory,  29-31a. 

when  leases,  29,  30. 

available  in  defence  in  equity,  31a. 
revocation  of  executed  licenses,  31. 

payment  of  damages,  31. 

estoppel,  31. 
LIEN, 

release  of,  as  consideration  of  guaranty,  200-205. 

See  Guaranties. 

whether  created  on  land  by  payment  of  price,  120. 
loss  of,  as  a  test  of  delivery  and  receipt,  317. 
LIMITATIONS,   STATUTE   OF.     See  Statute  of  Limitations. 


INDEX.  673 

LIVERY  OF  SEISIN, 

degeneration  of  ceremony  previous  to  statute,  1. 

but  nevertheless  a  legal  method  of  conveyance,  1. 

statute  applies  only  to  such  estates  as  could  formerly  be  transferred 

by,  2. 
LODGINGS, 

agreement  for  hiring,  20,  38. 

LORD  TENTERDEN'S  ACT,  181-185,  309,  370c. 
See  Guaranties  ;  Sales  of  Goods. 
LOSS, 

of  goods  before  satisfaction  of  statute,  138e. 

of  memorandum,  secondary  evidence  of  contents,  346a. 

of  lien,  as  a  test  of  receipt,  317. 

M. 

MANIFESTATION, 

of  trusts.     See  Trusts. 
MARK, 

signature  by,  355a. 

MARKING, 

goods  sold,  evidence  of  acceptance  and  receipt,  325. 

MARRIAGE,   AGREEMENTS  IN  CONSIDERATION  OF, 

statute  embraces  marriage  settlements,  215. 
not  mutual  promises  to  marry,  215a. 

consideration  and  contemplation  of  marriage,  distinguished,  215. 
not  a  promise  conditional  on  another  marriage  being  celebrated, 

220. 

applies,  though  promisor  dissatisfied  with  the  match,  if  his  prom- 
ise not  so  conditional,  220. 

marriage,  as  the  consideration  of  the  promise,  216. 
as  the  acceptance  of  it,  216a,  218. 
must  have  been  celebrated  in  reliance  upon  it,  217. 
agreement  must  be  performed  in  reasonable  time,  221. 

absolute  in  its  terms,  219. 
qu.t  if  revocable  before  marriage,  216a,  218. 
form  of,  222. 

manner  of  execution  of,  222. 
contents  of,  222. 
parol  evidence  in  connection  with,  222. 

See  Parol  Evidence  ;  Memorandum. 
effect  of  part-performance  of,  459. 
marriage  alone  is  not  sufficient,  459. 

See  Equity. 
post-nuptial  settlement  in  pursuance  of  ante-nuptial  verbal  promise, 

not  good  against  intervening  creditors,  223-224a. 
good  between  the  parties,  224,  224a. 
MEMORANDUM, 

not  the  contract,  but  evidence  of  it,  344,  345«,  354a. 
lost  memorandum,  contents  may  be  proved,  346a. 

43 


674  INDEX. 

MEMORANDUM  —  continued. 

formal  requisites,  may  be  an  offer,  345a,  3456. 

letter,  346,  350. 

receipt  for  purchase-money,  346. 

bill  of  parcels,  346. 

account  stated,  346. 

sheriff's  return,  346. 

vote  of  corporation,  346. 

auctioneer's  entry,  351. 

broker's  entry,  351. 

bought  and  sold  notes,  351,  351a. 

either  bought  or  sold  note  alone,  351a. 

telegram,  352,  note. 

deed,  354a. 

material  with  which  and  on  which  it  may  be  written,  352. 
time  when  it  may  be  written,  352a. 

in  cases  of  auctioneers  or  other  agents,  353,  353a. 
need  not  be  comprised  in  one  paper,  3466  347. 

correspondence  by  letter,  3466. 

instrument  signed  recognizing  previous  one  not  signed,  3466. 

papers  actually  attached  or  fastened  together,  3466. 

several  signed  papers  referring  to  the  same  transaction,  348. 

connection  between  them  cannot  be  shown  by  extrinsic  evidence 
348. 

certainty  with  which  they  must  refer,  348,  349. 

extrinsic  evidence  to  apply  them  to  the  subject-matter,  350. 
need  not  have  been  intended  as  memorandum,  354. 
nor  addressed  to  the  promise.  354,  354a,  3546. 
must  have  been  published,  354. 
may  repudiate  the  contract,  354a. 

signature  is  indispensable,  though  instrument  all  written  in  party's 
own  hand,  355.    • 

by  mark  sufficient,  355a. 

by  initials  sufficient,  362. 

may  be  printed  or  stamped,  356. 

place  of  signature  immaterial,  357. 

unless  statute  requires  subscription,  357. 

must  be  so  inserted  as  to  authenticate  the  instrument,  357,  358. 

must  be  intended  as  final  signature,  357. 

as  witness,  359. 

in  blank,  360. 

may  cover  subsequent  alterations,  361. 

qu.  if  name  of  party  must  be  signed,  362. 

not  sufficient  to  insert  minute  of  contract  in  plaintiff's  book  at 
defendant's  request,  363. 

by  agent,  364. 

by  party  to  be  charged  sufficient,  365,  366. 
sealing  not  necessary,  355. 

qu.  if  sufficient  without  signing,  355,  3556. 
agent  for  signing,  367-370a,  370c. 


INDEX.  675 

MEMORANDUM—  continued. 
who  may  be,  367-369. 
oue  party  cannot  be  for  the  other,  367. 
must  be  thereto  lawfully  authorized,  370. 
need  not  be  appointed  by  writing,  370a. 
subsequent  ratification  sufficient,  370a. 
former  agent  cannot  bind  principal  by  making  memorandum, 

3706. 

contents  of  the  memorandum, 
general  rule,  371. 

must  prove  the  contract  alleged,  371a. 
must  show  who  are  the  parties,  372,  373. 
sufficiency  of  identification,  373. 

showing  which  is  buyer  and  which  seller,  374,  375,  375a. 
must  contain  all  the  express  stipulations  of  the  contract,  376, 

384. 

price  stipulated,  376-3816. 
credit  to  be  given,  382,  383. 
interest  to  be  paid,  382. 
time  and  place  of  delivery  of  goods,  384. 
warranty  of  quality  of  goods,  384. 
description  of  property  contracted  for,  385. 
consideration,  381,  3816,  387-408. 
Wain  c.  Warlters,  387. 
force  of  word  "  agreement,"  387. 
"  promise,"  387. 
'«  bargain,"  389. 
American  decisions,  391. 

argument  upon  principle  in  favor  of  Wain  v.  Warlters,  392-398. 
what  is  sufficient  statement  of  consideration,  399-408a. 

when  consideration  of  guaranty  appears  to  be  the  same  as 

that  of  the  original  promise,  400-402,  405-408. 
where  forbearance  appears,  404. 
•when  guaranty  made  contemporaneously  with  incurring  debt, 

406-408. 

parol  evidence  admitted  to  explain  technical  expressions,  380. 
on  the  question  of  the  consideration,  403. 

See  Parol  Evidence. 
MERE  WORDS, 

evidence  of  acceptance  and  receipt,  320. 
MINING  CLAIM, 

contract  to  convey,  230,  note. 
MISCARRIAGE, 

of  another,  within  the  statute,  definition  of,  155,  195. 

See  Guaranties. 
MORTGAGE, 

qu.  if  a  conveyance  within  the  statute,  65,  66. 
gift  of,  not  good  by  parol,  66. 
in  equity,  by  deposit  of  title-deeds,  62-64. 
trust  in,  82. 


676  INDEX. 

MORTGAGE  —  continued. 

contract  to  execute,  requires  writing,  267. 

foreclose,  requires  writing,  267. 

revive  when  defunct,  267. 

release  or  discharge,  267. 

extend  to  other  liabilities,  267. 
qu.  of  chattels,  if  it  is  within  the  statute,  294. 
absolute  deed,  shown  to  be,  441a-441c. 

N. 

NAME, 

whether  signature  to  memorandum  must  express,  362. 

of  both  parties  to  appear  in  memorandum,  372,  373. 
NEGOTIABLE   PAPER, 

promises  to  indorse,  174. 

promises  to  accept,  172,  172a. 

promises  made  at  time  of  transfer  of,  165,  165a. 

See  Guaranties. 

NEW  CONSIDERATION,  207,  212-214. 
NEW   LEASE, 

surrender  by  taking,  48,  49. 
NOTICE   TO   QUIT.     See  Leases ;  Surrenders. 
"NOT   TO   BE  PERFORMED,"  ETC.     See  Year. 
NOVATION,  166a-167. 

See  Guaranties. 


o. 

OFFER. 

when  a  memorandum,  345a,  3456. 
OPERATION   OF   LAW, 

strictly  technical  words,  77. 
surrender  by,  48,  49. 
bankruptcy,  77. 
assignment  of  dower,  77. 
judicial  sales,  78. 
arbitrators,  78. 

See  Equitable  Mortgages;    Cancellation ;   Boundaries :  Exchanges ;  Mort- 
gage ;  Partitions. 
trusts  arising  by.     See  Trusts. 

ORDER, 

for  goods,  a  contract  of  purchase,  293. 
ORE, 

right  of  digging,  28. 
OWN   ESTATE, 

promise  to  pay  out  of,  186. 

See  Guaranties. 


INDEX.  677 

p. 

PAMPHLET, 

manifestion  of  trust  by,  98. 
PAROL, 

force  of  the  term  as  used  in  the  statute,  6,  note,  14. 

See  Parol  Evidence. 
PAROL   DEMISES,  7. 
PAROL  EVIDENCE, 

contradicting  an  absolute  deed,  93,  441a-442. 
admissible  to  prove  facts  to  raise  resulting  trust,  93. 
to  aid  defective  declaration  of  trust,  111. 
to  repel  inference  of  a  trust,  111. 
to  show  acceptance  and  receipt,  320-321e,  326. 

its  admissibility  in  connection  with  the  memorandum,  375a,  409-436. 
how  far  the  same  rules  apply  as  at  common  law,  409a. 
subsequent  oral  variation  of  contract,  4096-428. 
no  action  on  the  writing  as  so  varied,  411-422. 
same  as  to  all  contracts  within  the  statute,  416. 
and  whether  the  variation  be  in  a  material  particular  or  not, 

417,  418. 

or  in  a  particular  not  embraced  by  the  statute,  419,  420. 
qu.,  where  such  particular  alone  remains  executory,  421. 
performance  according  to  orally  substituted  terms,  how  far 

available,  423-428. 

to  show  discharge  of  written  agreement,  429-436. 
See  Evidence,;  Memorandum;  Trusts;  Acceptance  and  Receipt. 

PARTITIONS, 

authority  to  arbitrators  to  make,  15. 

verbal,  between  tenants  in  common,  whether  valid  to  sever  possession, 

68,  75. 

between  joint  tenants,  73, 
by  proprietors  of  common  lands,  74a. 
how  far  valid,  70-73. 
yalid  in  equity,  when,  74. 

See  Equity. 
PARTNER, 

undertaking  by,  to  pay  debts  of  firm,  164. 

PARTNERSHIP, 

in  lands,  262. 

lands  of,  when  treated  as  personalty,  259-262. 

in  goods,  294a. 

funds  of,  purchase  with,  raising  a  trust,  90. 

See  Land,  Contracts  for. 

PART-PAYMENT.     See  Earnest  and  Part-Payment. 
PART-PERFORMANCE.     See  Equity. 

PATENT-RIGHTS, 

whether  contract  for  sale  of,  requires  writing,  298. 


678  INDEX. 

PAUPER, 

settlement  may  be  gained  under  oral  contract,  135. 

PAYMENT, 

on  revocation  of  license,  30. 

of  rent,  under  oral  lease,  38-40. 

as  affecting  surrender,  56,  57. 

of  price,  in  sales  of  goods,  etc.,  341-343. 

See  Earnest  and  Part-Payment. 

as  price  of  land  agreed  to  be  conveyed,  as  an  act  of  part-performance, 
461-465. 

See  Equity. 
trusts  resulting  from,  85-94. 

See  Trusts. 
PENCIL, 

writing  in,  sufficient  under  the  statute,  352. 

PERJURY, 

by  false  swearing  to  oral  contract,  135,  517. 
denial  of  oral  contract,  517. 

PERSONALTY, 

trusts  in,  82. 

PEWS, 

contract  to  convey,  230,  note. 

PHYSICAL   INCAPACITY, 

to  sign,  etc.,  10-126. 

PLEADING, 

declaration,  when  on  special  contract,  504. 

sufficient  to  aver  a  contract  generally,  505,  505a. 

plea  of  agreement  within  the  statute  must  aver  writing,  506. 

bill  in  equity  should  allege  equitable  circumstances  relied  on  to  remove 

the  bar  of  the  statute,  507. 
sufficient  to  aver  a  trust  generally,  507a. 

defendant  must  rely  on  the  statute  by  some  regular  pleading,  508. 
exception  when  plaintiff  sues  on  common  counts,  508. 
by  demurrer,  509,  510. 
by  plea  of  general  issue  or  answer  denying  agreement,  511. 

effect  of  subsequent  conviction  for  perjury,  517. 
by  special  plea  in  bar  or  by  answer,  512. 

notwithstanding  defendant  admits  agreement,  515. 

qu.  in  cases  of  trusts,  516a. 

where  equitable  circumstances  are  charged,  516. 
form,  etc.,  of  such  plea  or  answer,  518,  519. 
whether  statute  may  be  pleaded  in  bar  to  discovery  of  fact  of 
agreement,  520-533. 

in  cases  of  trusts,  534. 
by  whom  statute  may  be  pleaded,  128,  135. 

POSSESSION, 

of  land  agreed  to  be  sold,  465-486. 

See  Equity. 


INDEX.  679 

POSSESSION  —  continued. 

agreements  as  to  transfer  of,  231. 
effect  of,  in  cases  of  verbal  partition,  74. 

PRICE, 

of  land  conveyed,  agreement  to  pay,  270. 

in  cases  of  contracts  for  goods,  etc.,  311-314. 

See  Goods,  Sales  of;  Earnest  and  Part-Payment. 
must  appear  in  memorandum,  376-3816. 
omission  of,  where  consideration  need  not  be  expressed,  3816. 
PRIMA   VESTURA, 

contract  for,  235-257. 
PRINCIPAL  AND  AGENT, 

principal  not  compellable  in  equity  to  vacate  agent's  oral  contract, 
130,  note. 

See  Agent ;  A  uctioneer. 
PRINTING, 

as  substitute  for  writing,  in  cases  within  the  statute,  98, 347,  348, 356. 

PROFITS, 

during  occupation  of  land,  119. 

of  land  bought  or  sold,  agreement  to  share,  2616,  2Qlg. 
«  PROMISE," 

force  of  word,  387. 
PROMISSORY  NOTES, 

whether  contract  for  sale  of,  requires  writing,  297. 

See  Negotiable  Paper. 
PROPOSAL, 

in  writing,  good  as  a  memorandum,  345a. 

PROPRIETORS, 

of  common  lands,  partition  by,  74cr. 

PURCHASER, 

false  representations  by,  resulting  trust  from,  95. 


QUANTUM  MERUIT, 
recovery  on,  118. 


Q. 


R. 


RATIFICATION.     See  Agent. 

RECEIPT, 

for  purchase  money,  a  memorandum,  346. 
of  goods  sold,  what  constitutes,  317,  317a. 

conduct  of  the  seller,  316,  317,  3216,  324,  326. 

conduct  of  the  buyer,  316,  317,  3216,  324. 

mere  words,  320. 

marking  the  goods,  325. 

goods  not  fitted  for  delivery,  317o. 


680  INDEX. 

RECEIPT  —  continued. 

possession  taken  without  seller's  consent,  326. 
goods  sold  for  cash,  317a,  323. 
actual,  symbolical,  and  constructive,  318,  318a. 
transfer  of  possession,  317. 
loss  of  lien,  317. 

goods  in  possession  of  seller,  318&. 
goods  in  possession  of  a  bailee  of  the  seller,  31  da. 
goods  on  the  premises  of  a  third  person,  not  a  bailee,  319. 
attornment  to  the  buyer,  319a. 
goods  in  possession  of  buyer,  3196. 

See  Acceptance  and  Receipt. 
RECITAL, 

in  a  deed,  raising  a  resulting  trust,  91. 
in  a  deed,  good  declaration  of  trust,  99,  100. 
in  second  lease,  not  surrender  of  former,  43. 
REDELIVERY, 

of  deed.     See  Cancellation. 
REDEMPTION.     See  Equity  of  Redemption. 
REFORMING   CONTRACT, 

whether  court  will  both  reform  and  enforce  where  mistake  admitted 

by  defendant's  answer,  500. 

power  extends  to  cases  of  mistake  or  fraud  proved  by  parol,  441c. 
RELEASE, 

from  oral  contract,  not  good  consideration,  134. 
oral,  of  written  contract,  134. 

See  Parol  Evidence. 
mortgage,  267. 
land  damages,  270. 
RELIGIOUS   SOCIETIES, 

trusts  in  favor  of,  82. 
RENT   RESERVED, 

under  second  section,  32,  32a. 
payment  of,  under  verbal  leases.     See  Leases. 
REPAIRS, 

covenants  for,  under  verbal  leases,  39. 
REPRESENTATIONS, 

as  to  credit,  etc.     See  Guaranties. 
RESALE, 

after  breach  of  verbal  contract,  1 34. 
RESCISSION, 

of  verbal  contract  in  equity,  118,  124. 
RESERVATION, 

of  a  building  by  parol,  234et. 
of  interests  in  land,  269a. 
RESULTING   TRUSTS.     See  Trusts. 
REVOCATION, 

of  license.     See  Licenses. 


INDEX.  681 


REVOCATION  —  continued. 

of  easement,  by  license,  27a. 

of  acceptance  and  receipt,  340. 
ROOMS, 

agreement  for  hiring,  20,  38. 

S. 
SALES, 

judicial,  264,  265. 

by  auctioneers,  etc.,  264,  265. 

•with  privilege  of  return,  293. 

See  Goods;  Acceptance  and  Receipt. 
SALES-BOOK, 

of  auctioneer,  entry  in,  as  a  memorandum,  351. 
SAMPLE.     See  Acceptance  and  Receipt. 
SEAL, 

•when  needed  on  a  lease,  6,  9. 

whether  sufficient  for  lease  without  signature,  9. 

authority  of  agent,  when  to  be  under,  14-146. 

not  necessary  to  memorandum  of  agreement,  355. 

qu.  if  sufficient  execution  of  memorandum,  355,  3556. 

not  necessary  to  declaration  of  trust,  105. 

See  Deed. 

SECRET  TRUSTS,  82. 
SEISIN.     See  Livery  of  Seisin. 
SET-OFF, 

of  money  orally  agreed  to  be  paid,  131. 
SHARES, 

not  interests  in  land,  258. 
qu.  if  goods,  wares,  or  merchandise,  296,  297. 
SHARING, 

crops,  etc.     See  Leases. 
SHERIFF, 

his  return  on  execution,  a  good  memorandum,  346. 
as  agent  for  signing,  369. 

his  deputy,  369. 
SHERIFFS'   SALES, 

of  land,  covered  by  the  statute,  264. 
goods,  etc.,  covered  by  the  statute,  293. 

See  Sheriff. 

SHORT  LEASES.     See  Leases. 
SIGNATURE, 

what  is  sufficient,  in  cases  of  conveyances,  10-12. 
of  a  conveyance,  in  blank,  12. 

by  another's  hand,  10-12. 
by  agent,  13. 
by  corporation,  14. 
by  whom,  in  declarations  of  trust,  106. 

See  Memorandum. 


682  INDEX. 

SOCIETIES, 

religious,  trusts  in  favor  of,  82. 
SOLVENCY, 

representations  in  regard  to  a  third  person's,  181-185. 

See  Guaranties. 
SPECIAL   PROMISE, 

meaning  of,  as  used  in  the  statute,  166. 

action  must  be  upon,  504. 

how  far  admissible  in  evidence,  in  action  on  the  implied  promise  to 

pay  for  land,  etc.,  received,  124-127. 
SPECIALTY, 

agreements  by,  6. 

SPECIFIC   EXECUTION.     See  Fraud ;  Equity. 
STATUTE  OF   FRAUDS, 

applies  only  to  estates  that  could  formerly  be  transferred  by  livery  of 

seisin,  2. 

right  of  third  person  to  rely  npon,  128,  135. 
repeal  of,  how  it  affects  existing  contracts,  136. 
does  not  apply  to  conveyance  of  incorporeal  estates,  2. 
differences  of  phraseology  noticed  and  compared,  4. 
"lands,  tenements,  and  hereditaments,"  4,  5,  228. 
"  uncertain  interests,"  4,  5. 
"  any  interest  in  or  concerning,"  4,  5. 
"created,"  "manifested,"  "declared,"  104. 
"  allowed  to  be  good,"  115. 
of  first  section,  6,  9,  18. 
of  third -section,  8,  46. 
of  second  section,  18,  32. 

of  second  and  fourth  sections,  32,  note,  37,  37a. 
of  second  and  third  sections,  43. 
of  first,  third,  and  seventh  sections,  79-81. 
of  fourth  and  seventeenth  sections,  115,  116. 
provisions  concerning  creation  and  transfer  compared,  226,  228. 
"  contract  or  sale,"  263. 

"  agreement,"  "  promise,"  and  "bargain  "  compared,  387-394. 
STATUTE   OF   LIMITATIONS, 

affecting  oral  renewal  of  contract  within  Statute  of  Frauds,  137. 
STOCKS.     See  Shares. 
STREET, 

agreement  to  open,  269. 

SURRENDERS,  42-57. 
1.    By  act  of  parties, 

need  not  be  bv  deed,  where  deed  not  necessary  at  common  law, 

42. 

special  form  of  words  not  necessary,  43. 
cancelling  or  redelivering  title-deed  not  necessary,  43. 
not  of  itself  sufficient  as  surrender,  44. 

See  Conveyances. 
recital  in  second  lease  of  surrender  of  prior  one,  43. 


INDEX.  683 

SURRENDERS  —  continued. 

by  parol  of  verbal  leases,  45,  46. 
of  estate  for  years  may  be  to  take  effect  infuturo,  47. 
notice  to  quit,  how  far  material,  47,  55. 
entry,  when  necessary  to  complete,  54-56. 
2.   By  act  and  operation  of  law. 
new  lease  taken,  48,  49. 
void  lease  taken,  49,  50. 
when  tenancy  at  will  is  created,  50. 
when  it  takes  effect,  52. 
by  actual  change  of  tenancy,  53-57. 
doctrine  of  estoppel,  53,  56,  57. 
exchange  of  tenants,  54. 
assignment  of  lease,  55. 
delivery  of  key,  55. 
assent  of  landlord,  56. 
payment  of  rent  by  new  tenant,  56,  57. 
See  Assignments. 


T. 

TAXES, 

contract  in  reference  to  payment  of,  269. 
TELEGRAM, 

as  a  memorandum,  352,  note. 
TENANCIES, 

at  will.     See  Leases ;  Surrenders. 

from  year  to  year.     See  Leases. 
TENANT, 

license  to,  to  remove  fixtures,  27,  note. 

TENDER, 

of  earnest,  343ft. 

THEATRE, 

ticket  to,  23a,  24. 
THIRD   PARTIES, 

reliance  upon  the  statute  by,  135. 

parties  in  privity,  135c. 

agreement  to  do  something  requiring  more  than  a  year,  2916. 

possession  and  improvements  giving  title  against,  492a. 

undertaking  to  answer  for.     See  Guaranties. 
THREE  YEARS, 

computation  of,  in  short  leases,  33. 
TICKET, 

of  admission,  when  a  lease,  23a,  25. 
TIME, 

of  payment,  in  cases  of  resulting  trust,  89. 

of  duration  of  term  of  lease.     See  Leases. 

of  delivery  of  goods  need  not  appear  in  the  memorandum,  384. 


684  INDEX. 

TITLE, 

to  goods  sold  by  oral  contract,  138e?-138i, 

to  crop  sold  orally,  254c. 

to  land  or  chattels,  in  trespass  or  detinue,  cannot  be  shown  by  oral 
contract,  131. 

contract  to  establish  or  break  down,  or  to  release  covenant  of  war- 
ranty of,  268- 

TITLE-DEEDS, 

deposit  of,  creating  equitable  mortgage.     See  Equitable  Mortgages. 

TORTS, 

of  third  person,  promise  to  answer  for,  155. 

See  Guaranties. 
TOWN   OFFICERS, 
sales  by,  264,  265. 

TREES, 

growing,  contract  for,  235-257. 

See  Land,  Contracts  for. 
TRESPASS, 

oral  license  a  good  defence  to  action  of,  133. 
TRILATERAL   LIABILITY,  175,  note. 

See   Guaranties. 
TRUSTEE, 

declarations  of,  raising  a  resulting  trust,  91. 

TRUST  FUNDS, 

purchase  with,  raising  a  resulting  trust,  90. 
TRUSTS, 

comparison  of  first,  third,  and  fourth  sections,  79-81. 
statutes  of  Pennsylvania,  Kentucky,  and  Virginia,  80,  81. 
1.     Express  trusts,  declaration  or  manifestation  of,  79-82,  97-112. 

how  far  the  statute  provisions  in  regard  to  contracts  and  convey- 
ances may  supply  the  place  of  those  in  regard  to  trusts,  79-81. 
include  uses,  82. 
trusts  of  chattels  real,  82. 
trusts  of  personalty,  82. 
secret  trusts  to  defraud  creditors,  82. 
trusts  in  contracts  to  convey  land,  82. 
trusts  in  mortgages,  82. 
trust  to  religious  societies,  82. 
writing  need  not  be  addressed  to  cestui,  99. 
nor  intended  as  a  manifestation,  99. 
form  of  writing.  97-112. 
manifestation  or  proof  of,  alone  required  to  be  in  writing,  97, 

104. 

requisites  of  the  written  manifestation,  97-112. 
time  when  it  may  be  made,  97. 
may  be  in  the  form  of  a  letter  of  trustee,  98,  99. 
printed  pamphlet,  98. 
entry  in  trustee's  books,  98,  109. 
letters,  99. 


INDEX.  685 

TRUSTS  —  continued. 

recital  in  deed,  100. 

desposition,  100. 

will,  107. 

answer  in  chancery  admitting  the  trust,  100-103. 

any  instrument  showing  the  trust  relation,  109,  110. 
need  not  be  sealed,  105. 
not  comprised  in  a  single  paper,  105. 

by  whom  to  be  signed,  106. 

need  not  show  consideration,  112. 

•will  to  prove  trust  must  be  executed  as  a  will,  107. 

forms  of  words  immaterial,  108,  109. 

expressions  "  our,"  "  your,"  etc.,  not  sufficient,  108. 
whether  equity  will  compel  a  discovery  of  the  trust,  108. 

See  Pleading. 
enforced  in  equity  when  partly  executed,  108. 

See  Equity. 

parol  evidence,  for  what  purposes  admitted,  96,  111,  112. 
2.     Implied  or  resulting  trusts,  83-96a. 
not  affected  by  the  statute,  83. 
sustained  on  common-law  principles,  84. 
different  kinds,  84. 
joint  advance,  85. 

cestui  que  trust  paying  purchase  money,  85-94. 
abolished  in  certain  states  by  statute,  84,  note. 
payment,  what  constitutes,  87-91. 
waiver  of  a  claim,  as  payment,  88. 
borrowed  money,  90. 
payment  with  trust  funds,  90. 
payment  with  partnership  funds,  90. 

may  be  pro  tanto  in  proportion  to  amount  paid,  85. 

must  be  payment  of  an  aliquot  part  of  the  whole,  86. 

proportion  paid  must  appear  with  certainty,  86. 

payment  need  not  be  in  money,  87. 

must  be  at  the  time  of  purchase,  89. 

and  out  of  cestui  que  trust's  own  funds,  90. 

of  the  evidence  to  prove  payment  and  the  ownership  of  the 
funds,  91-93. 

parol  evidence  admitted  for  this  purpose,  93. 

must  be  clear  and  strong,  91. 

or  to  rebut  presumption  of  resulting  trust,  92. 
in  cases  of  fraud,  94-96a. 

what  constitutes,  94. 

mere  breach  of  agreement  not,  94. 

agreement  to  give  a  writing,  94a. 

false  representations  of  purchaser,  95. 

conveyance  on  faith  of,  95. 

fiduciaries,  conveyances  to,  96. 

fiduciaries,  contracts  with,  96. 

cestui  parting  with  an  interest,  96a. 


686  INDEX. 

u. 

"  UNCERTAIN   INTEREST," 

in  land,  force  of  the  term,  228. 

See  Land,  Contracts  for. 
USE.     See  Trusts. 
USE   AND  OCCUPATION, 

action  for,  in  case  of  invalid  verbal  lease,  40,  124. 

V. 

VALIDITY, 

of  oral  contracts.     See  Contracts. 
VALUE.     See  Earnest  and  Part-Payment. 
VARIATION, 

of  statutory  contracts  by  oral  stipulation.     See  Parol  Evidence. 
VERBAL   CONTRACTS, 

validity  of.     See  Contracts. 
VERBAL   LEASES, 

validity  of.     See  Leases  ;  Assignments;  Surrenders. 
VOID   AND  ILLEGAL.     See  Contracts,  Leases. 

W. 

WAIVER, 

of  defence  upon  the  statute,  135. 

oral,  of  written  contract,  429-436. 

of  a  claim,  how  far  payment  to  raise  a  trust,  88. 
WAREHOUSEMAN.     See  Agent. 
WARRANTY, 

of  quality  of  goods  need  not  appear  in  the  memorandum.  384. 

of  title,  release,  etc.,  of.     See  Title. 
WATER, 

rights  of  flowage  of.     See  Leases. 
WILL, 

physical  incapacity  to  sign,  10-126. 

agreement  to  leave  land  by,  requires  writing,  263. 

to  be  used  as  declaration  of  trust,  must  be  executed  as  will,  107. 
WITNESS, 

signature  as,  359. 

See  Memorandum. 
WORDS, 

as  showing  acceptance  and  receipt,  320. 
WORK  AND   LABOR, 

contracts  for.     See  Goods. 
WRITING, 

agreement  to  execute,  266. 

See  Memorandum. 


INDEX.  687 


Y. 

YEAR,  AGREEMENTS  NOT  TO  BE  PERFORMED  IN  A, 

includes  agreements  of  whatever  subject-matter,  272. 
"  to  be  performed,"  meaning  of  words  to  be,  274-283. 
cases  where  there  is  no  express  provision, 

if  upon  a  contingency  which  may  happen  in  a  year,  the  agreement 

is  to  be  performed,  statute  does  not  apply,  274-282. 
promise  to  do  something  on  the  happening  of  a  certain  event,  275. 
to  continue  to  do  something  until  it  happens,  276. 
to  continue  to  do  something  for  an  indefinite  time,  276a. 
to  refrain  from  doing  something  altogether,  277. 
to  do  something  where  more  than  a  year  is  allowed,  278. 
to  do  something  where  no  time  is  specified,  278a. 
immaterial  that  the  contingency  is  not  likely  or  expected  to  occur 

within  a  year,  279. 
but  it  must  be  such  as  may  in  the  natural  course  of  events  occur 

within  a  year,  280. 
possibility  of  performance,  281. 
effect  of  happening  of  contingency  to  complete,  not  defeat,  the 

performance  of  the  contract,  281,  281a. 
cases  where  there  is  express  provision, 

if  contract  by  its  terms  takes  more  than  a  year,  statute  applies. 

282-284. 

for  a  term  of  years,  282. 
death  of  promisor,  282a. 

agreements  to  refrain  from  doing  during  a  term,  2826. 
"  performed,"  meaning  of  the  word,  285-290. 

statute  applies  unless  contract  may  be  entirely  performed  within 

the  year,  285. 

qu.  if  enough  that  it  may  be  performed  on  one  side,  286-290a. 
immaterial  how  little  the  year  is  exceeded,  291. 
performance  as  soon  as  contract  is  made,  though  rights  under  it 

may  continue  indefinitely,  291a. 
agreement  that  third  party  shall  do  something  requiring  more 

than  a  year,  2916. 
YEAR  TO  YEAR.    See  Leases. 


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